SOVEREIGNTIST TERRITORIALISM
PROCEDURAL MECHANISMS, INSTITUTIONAL DESIGNS,
Given the reality of hybridity, we should not be at all surprised to find the development of procedural mechanisms, institutions and discursive practices across a wide range of doctrinal fields that attempt to manage the overlap of legal or quasi-legal communities. In fact, just thinking of them as mechanisms for managing hybridity can provide a different perspective on their effectiveness or functionality. For example, these mechanisms, institutions and practices are often the product of necessary political compromise between sovereign territorialism and universalism, and are therefore considered "half a loaf" solutions by advocates on both sides: less attractive than they hoped for, but better than nothing.
Viewing such mechanisms, institutions, and practices through a pluralist lens, however, might encourage us to consider whether they are not instead "bread and a half" solutions that, with their compromises, actually result in a better set of procedures for managing hybridity than if sovereign territorialism were to prevail entirely. or universalism. Thus, each of the mechanisms described in this work faces the excruciatingly difficult and probably intractable problems of how best to determine when the norms of one community should give way to those of another and when, on the contrary, pluralism can be preserved. Rather, I argue that creating (or maintaining) mechanisms, institutions, and practices that confidently acknowledge the reality of hybridity and seek temporary compromises may sometimes be the best that can be done.
DIALECTICAL LEGAL INTERACTIONS
Although these NAFTA panels lack formal authority over the national courts they review, they have the power to assess damages against federal authorities for violations of the trade agreement,181 even if those violations occurred in the context of a judgment in a national court. We thus see multiple sources of normative authority: the national court that delivered an initial judgment, the NAFTA tribunal that evaluates that judgment for fidelity to the principles of the treaty, and the federal authorities that, in response to pressure from the NAFTA tribunal, may in turn put pressure on the national court. This dialectical relationship, forged and developed over many years, may well reflect the path that NAFTA courts and national courts have yet to take, as well as the many other intersystemic interactions at play in the world today.
See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, which is Schedule B to the Canada Act 1982, ch. On the other hand, it is possible that "the notwithstanding clause frees Canadian courts to be less deferential to elected legislatures than they otherwise would have been in the absence of such a clause because it allows judges to act on the basis that their decisions are not final." Allan & Huscroft, supra note 189, at 21-22. See Jennifer Nedelski, Reconceiving Rights and Constitutionalism (2007) (unpublished chapter in manuscript, with author) for an account supporting the disregard clause approach from a political theory perspective.
MARGINS OF APPRECIATION
Moreover, by framing the inquiry as a local consensus, the margin of appreciation doctrine disciplines the ECHR, forcing it to move gradually and work toward consensus without rushing too far. Finally, the margin of appreciation acts as a signaling mechanism through which "the ECtHR can identify potentially problematic practices for States Parties before they actually become violations, thereby allowing States to anticipate that their laws will one day be called into question."'99 And of course, there is also feedback signaling, as home states, through their social evolution away from consensus, effectively maintain room for local variation. 34; The conjunction of the doctrine of the field of discretion and the investigation of consent thus enables the ECtHR to connect its decisions with the speed of changes in domestic law, thereby recognizing the political sovereignty of the defendant states, while at the same time legitimizing its own decisions against them."200.
Thus, an entity such as the ECtHR may, for example, articulate a particular conception of rights, while recognizing that the way in which this right is implemented is subject to various alternative conceptions. MERRILLS, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE EUROPEAN COURT OF HUMAN RIGHTS 81 (2d ed. 1993) (interpreting the ECtHR's statement in Rees v. A) that "[t]he need for measures the appropriate legal framework [to protect transsexuals] must therefore be kept under review with particular regard to scientific and social developments' as a "strong hint that while British practice currently fulfills [the Convention], the Court's duty to interpret the Convention as an instrument of alive .. may lead it to another conclusion in the future"). For example, the controversial agreement on Trade Aspects of Intellectual Property Rights could be interpreted to include a valuation difference.
LIMITED AUTONOMY REGIMES
English courts, for example, were only empowered to exercise the jurisdiction of the English courts and chancelleries “so far as circumstances would permit”.6 At the same time, questions arise about the extent to which members of a particular religious or ethnic community can waive its adopting personal law and the law of the nation-state, e.g. Article 5 of the Treaty on European Community (manuscript, submitted to the author) (arguing that feminist obligations should be regarded as fundamental and meritorious). out of reverence, as religious).
Weiler, Journey to an Unknown Destination: A Retrospective and Perspective of the European Court of Justice in the Arena of Political Integration, 31 J. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 COLUM. Treaty Establishing the European Community, art. C In areas that do not fall within its exclusive competence, the Community will take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and, therefore, may because of the scale or effects of the proposed action, are better achieved by the Community.").
JURISDICTIONAL REDUNDANCIES
For example, the Argentine military expressed its desire for amnesty for human rights violations through several uprisings in the late 1980s. See Hector Tobar, Judge Orders Officers Freed: The Argentine Military Men Accused of Rights Abuses in the '70s and '80s May Still Face Trials, L.A. The best-known complementarity regime in the world is that enshrined in the Statute of the International Criminal Court ("ICC") ").
Thus, sovereignist voices in the United States condemn the International Criminal Court as an encroachment on state prerogatives,270 despite the fact that the jurisdiction of the International Criminal Court is over the United States See e.g. Hans-Peter Kaul, Prerequisites for the Exercise of Jurisdiction, in I THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 583, 613 (Antonio Cassese, Paola Gaeta & John R.W.D. Jones eds., 2002) (referring to the rejection of universal jurisdiction as a Burke- White, Proactive Complementation: The International Criminal Court and National Courts in the Roman Judicial System 5 (Univ.
HYBRID PARTICIPATION ARRANGEMENTS
If the various communities involved in the dispute are widely represented, the outcome of the trial is more likely to be acceptable to a cross-section of the population. On the other hand, the presence of local judges can protect against the dismissal of the court as completely "foreign", which has affected, for example, the ICTY. For a useful description of the terms of the project, see Emeka Duruigbo, The World Bank, Multinational Oil Corporations, and the Resource Curse in Africa, 26 U.
Significantly, however, most criticism of the plan so far has tended to focus on the specific terms of the shared sovereignty arrangement, rather than the hybrid structure itself. Ten percent of the money will be held in international financial institutions as a fund for future generations. The remaining fifteen percent would be spent on developing the oil-producing Doba region.
MUTUAL RECOGNITION REGIMES
Alternatively, national courts may be forced to consider the extent to which a foreign standard should apply to a cross-border transaction, which may lead to questions of law of the kind discussed in Part IV.I below. 329 Because the systems do not recognize each other's judgments and do not share court records, deeds of land titles, births, deaths, marriages or divorces, even ordinary civil cases must be heard in both courts, leading to conflicting judgments, speculation and arbitration. The parallel courts in Kosovo are also an example of the legal pluralism that has developed in other divided societies.
How can long-divided societies, such as the Greek and Turkish administrations in Cyprus, integrate judicial decisions with each other if they are ultimately united?33 ° Importantly, bringing to justice those accused of the worst human rights abuses has long been the focus of international law scholars and activists, the day-to-day operation of these plural legal systems and their resolution of more mundane, everyday disputes may be just as important to local populations and may even be a more crucial element in rebuilding post-conflict societies. Accordingly, he proposes to apply the principles of recognition of judgments in an ethnically based legal dispute, regardless of the disputed sovereignty claims that underlie the formal legitimacy of the two courts.3 3 1. But this is simply another form of line-drawing problems. discussed in this article.
SAFE HARBOR AGREEMENTS
A PLURALIST APPROACH TO CONFLICT OF LAWS
establish a test to determine whether an assertion of personal jurisdiction is consistent with the Due Process Clause of the United States. Instead, the courts must carry out a nuanced examination of whether the parties' connection makes the original judgment legitimate. Third, while it is true that constitutional norms could conceivably create sufficient public policy reasons for refusing to enforce a judgment, the libel dispute in Telnikoff in no way implicated the public policy of the United States because neither party had any particular connection to United States at the time of the events in question.
Instead, courts must take seriously the conflicting values effected by the enforcement of the foreign judgment, weighing the importance of such values against the relative importance of the local public policy or constitutional norm, and the extent to which the parties have committed themselves to the forum. Only then can courts take into account the multi-state nature of the dispute and the flexible quality of community relations in a multi-changing world. Indeed, part of the reality of pluralism is that no answer is ever final or followed by everyone.
