Suchergebnisse

This paper is based on a draft which was presented at the international conference 'Exclusions from Constitutional Law', held at the School of Law of the University of Hong Kong, October 28-29, 2009. The paper gathers the results from numerous experiences and conversations with people related to the topics touched upon in this paper. Too numerous to mention all of them, I wish to thank in particular H. Patrick Glenn, Francis Snyder, M.P. Singh, Surya Deva, Sindhu Vasantha Nagaraja, Arno Kreilhuber, Holger Neuwirth, Iris Neuwirth, Abderrahmane Ould Isselmou, Miguel Ângelo Loureiro de Lemos, Iris Eisenberger, and Chen Zhi Jie for the many interesting conversations and their useful comments. I would especially like to thank Francesco Francioni and Alison Tuck for their kind support in the organization of my stay as a Visiting Fellow at the European University Institute (EUI) in summer 2010. ; The past century has seen drastic changes and the pace with which they occur appears yet to be accelerating. It is not only we as individuals who have difficulties following these processes, but also the international legal and institutional framework put in place by previous generations no longer provides efficient responses to the imminent global challenges. It appears that the perennial struggle between continuity and change has reached a new level. This new level is summarized in the global governance debate which is aimed at deepening our understanding of the processes on which our paths depend and, at the same time, at formulating new ideas about new ways we might proceed. However, a global platform on which this debate can unfold is generally absent. International organizations continue their autistic practice and international law fragments further. The question then is how we can create a common platform without a common place to converse. The answer offered in this paper is by starting to create a common vocabulary, as thoughts and words precede and determine our actions. In this global vocabulary, the 'developing/developed' dichotomy is one conceptual distinction that, it is argued here, is largely outdated and even malicious in its effects. A survey of its use across various legal contexts not only uncovers institutional fragmentation but also largely contradicts the dynamism inherent in nature. In sum it annihilates the basis for a broader solidarity needed for a more synthetic approach to the solution of many urgent global problems. This conceptual distinction divides the world into so-called 'developing countries', on the one hand, and 'developed countries', on the other. With a view to contributing to the global governance debate, this 'constitutional' reading and comprehensive overview of numerous international and national legal instruments marks an attempt to demonstrate the need for more dynamic processes of governance because, ultimately, we all want to live in 'developing countries'. ; I. Introduction . 1 II. We all Live in 'Developing Countries' . 4 III.'Developed' or 'Developing Country': Definition Impossible?. 6 IV. The Consequences: 'Ignorant Arrogance' and 'Averted Responsibility'. 7 V. A Meta-Juridical Critique of the Developing/Developed Country Dichotomy. 9 VI. Global Governance and the 'Clash of Institutions or the Remaking of the Global Legal Order'. 12 1. The United Nations Charter as the World's Constitution . 13 2. International Human Rights Law. 13 3. Culture and Development . 16 4. International Labor and Social Standards and Development . 18 5. Environmental Protection and Sustainable Development. 20 6. Development for Development. 25 7. Global Public Health and Food Security. 26 8. International Trade and Development: The Multilateral Trading Regime under the WTO. 27 9. International Financial Institutions and Development: The World Bank and the IMF. 30 10. International Criminal Law. 32 11. General Public International Law . 33 12. General Private International Law . 34 13. Other International or Regional Organizations . 35 14. Résumé. 37 VII. Comparative Constitutional Law. 38 1. Aspects of Development in National Constitutions . 38 2. The Constitution of the United States of America (March 17, 1789) . 39 3. The Constitution of India (January 26, 1950) . 39 4. The Constitution of the People's Republic of China (December 4, 1982). 40 5. The 'Basic Constitutional Charter' of the European Union. 41 6. Résumé . 42 VIII. Conclusion. 42 Bibliography. 44

Defence date: 05 July 2005 ; First available online in October 2012. ; Examining Board: Prof. Bruno De Witte (Supervisor, European University Institute, Florence) ; Prof. Armand de Mestral, McGill University, Montréal ; Prof. Ernst-Ulrich Petersmann, European University Institute, Florence ; Prof. August Reinisch, University of Vienna ; In the universal history of mankind, the concepts "culture" and "trade" have long denominated two important trains of human aspirations and activities. Notwithstanding their great significance for human life in its entirety, they have been widely regarded as belonging to distinct spheres, which were deemed to be difficult, if not impossible, to reconcile. This perception was also widely reflected in the sphere of law, where their respective fields have been subject to separate regimes based on the logic of their mutual exclusivity and expressed in the concept of res extra commercium. By contrast, the concept of "cultural industries", which was originally derived from the term Kulturindustrie coined by protagonists of the Frankfurt School introduced a new category of cultural goods and services, which began to strongly challenge the traditional legal separation of cultural from economic considerations. Their novelty as well as their more subtle conceptual implications led to the controversy over the treatment of the dual, i.e. both cultural and economic, nature of such goods and services, which surfaced first during the bilateral trade negotiations between Canada and the United States and soon afterwards during the multilateral Uruguay Round negotiations. In the latter, it was the controversy over the exception culturelle that almost derailed the successful establishment of the World Trade Organization (WTO). Since then the problem remains unsolved, and reinforced by the decision of the WTO Panel in the Canada Periodicals Case, the quest for an appropriate conceptual approach allowing for the correct legal answer to the conundrum of culture and trade continues up to this day. In this quest, the present thesis forms an attempt to cast some light on the culture and trade conundrum with a view to isolating options for an appropriate legal response of the multilateral trading system under the WTO. It follows the evolution of the concept of cultural industries, from its birth in the context of critical social theory across the field of political economy to its first appearance in the legal context with the 1988 Canada-United States Free Trade Agreement. After a short analysis of the cultural industries exemption in the North American context, its focus shifts to the GATT/WTO system of which the basic provisions are discussed in connection with the category of cultural goods and services known as the cultural industries. Their critical analysis yields the present imperfections inherent in the WTO system as a corollary of the fragmentation of the international legal order. Before some final conclusions are drawn, these imperfections are contrasted with the relevant experiences within the context of the process of European integration from the European Economic Community to the European Union.