Forum 9: Gaps and Silences in the Law

Chaired by Professor Iain Scobbie

International law may be most expressive in its gaps and silences. Has the map of areas where international law does not rule changed in the period 1989-2010? Should it rule in new areas? Who should develop these rules? What are the obstacles?

International law goes domestic: international electoral standards and their legitimacy

DR CHRISTINA BINDER, Assistant Professor of International Law, University of Vienna

Abstract: After the end of the Cold War and the collapse of the Soviet Union, democratic Zeitgeist swept the globe. International law seemed no longer indifferent to how regimes were formed. In 1992, Tom Franck referred to an “emerging right to democratic governance,” and Niels Petersen, in 2008, to “a right to the emergence of democratic governance.”

Part of this post-1989 development was a considerable increase in the practice of international human rights monitoring institutions concerning the right to political participation as well as a proliferation of election observation missions by International Organisations. Both strands of law developed and implemented international standards for domestic electoral processes with increasing effectiveness. The state's consent may be found in its participation in human rights treaties and the invitation of an election observation mission.

Nonetheless, the dynamism inherent in the phenomenon of “international law going domestic in electoral matters” raises legitimacy questions insofar as the original state consent—the main source of legitimacy in traditional international law—appears to be an insufficient basis for the broad exercise of the international institutions’ authority.

Accordingly, this paper proposes a wider approach to examining the phenomenon. Through source, procedure, and result-oriented elements of legitimacy, it will assess and compare the development and implementation of international electoral standards. The focus will be on the regional context of Europe, with special attention to the jurisprudence of the European Court of Human Rights as well as the OSCE/ODIHR election observation practice.

Biography: Christina Binder is Assistant Professor at the Department of European, International and Comparative Law at the University of Vienna. She is recipient of an APART-scholarship of the Austrian Academy of Sciences. Christina is currently visiting scholar at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. She was visiting fellow at the Lauterpacht Centre in Cambridge in 2007/08. Christina’s main research interests are the international law of treaties, international human rights law as well as international standards of political participation and democratisation. Christina also works as a legal and electoral expert in EU and OSCE/ODIHR election observation missions.

Binder - Draft ESIL Paper

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Once upon a time there was a gap...

Dr ROGER O'KEEFE, Senior Lecturer in Law and Deputy Director of the Lauterpacht Centre for International Law, University of Cambridge

Abstract: When the Comptroller-General for the Complete System uncovers a gap in the law, everyone has something to say.  Roger O'Keefe weaves a fable of international law since the end of the Cold War, of international lawyers and of the hole at the centre of the international legal system.

Biography: Dr Roger O'Keefe is a Senior Lecturer in Law and the Deputy Director of the Lauterpacht Centre for International Law at the University of Cambridge, as well as a Fellow of Magdalene College. He has published widely, including in the British Yearbook of International Law, where he is responsible for the section ‘Cases in British Courts involving Public International Law’, in the International and Comparative Law Quarterly, the Netherlands International Law Review, the Revue Belge de Droit International, where he is a member of the Conseil scientifique, the German Yearbook of International Law, where he serves on the Peer Review Committee, the Max Planck Encyclopedia of Public International Law and in the Journal of International Criminal Justice, which awarded him the 2004 Giorgio La Pira Prize for his article ‘Universal Jurisdiction: Clarifying the Basic Concept’. His book The Protection of Cultural Property in Armed Conflict was published by Cambridge University Press in 2006. In 2009, he was a member and the co-rapporteur of the African Union-European Union Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction.

O'Keefe - Draft ESIL Paper

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