Papers by mikael R madsen
Social Science Research Network, 2015
One of the most profound developments in contemporary law and society is the new importance attac... more One of the most profound developments in contemporary law and society is the new importance attached to international law (IL). A particularly striking trend in this regard is the increased juridification of international relations, performed by a growing number of international courts (ICs). Whereas only a handful of ICs existed in the mid-1980s, there are now at least 24 in operation, and there are indications of further growth. This paper traces the evolution of ICs and compares it with the parallel development of Global Administrative Law (GAL). It argues that although the development of ICs in part overlaps with the emergence of Global Administrative Law (GAL), it is also different, in important qualitative and quantitative ways. The main difference, the paper argues, is the central role of states with regard to ICs. This creates a different set of issues with regard to legitimacy as it generally makes ICs more susceptible to accusations of politicization.
Social Science Research Network, 2018
The creation of a global structure of international courts (ICs) has been an ongoing project thro... more The creation of a global structure of international courts (ICs) has been an ongoing project throughout the twentieth century and well into the twenty-first. It wasand is-part of a more general endeavor of creating an international community governed by law. While the proliferation of ICs has been described elsewhere, 1 we know surprisingly little about who the actual judges sitting at the helm of contemporary judicialized international law and ruling (on) the world are. What has once been termed the "invisible college of international law" 2 remains to a large extent invisible to this day. But it is now a much larger college as the proliferation of ICs has resulted in a corresponding multiplication of the number of international judges. Today, more than three hundred men and women hold the office of international judge. 3 Most are found in Europe, at the two regional courts of the Court of Justice of
Oxford University Press eBooks, Jun 8, 2022
The creation of a global structure of international courts has been an ongoing project throughout... more The creation of a global structure of international courts has been an ongoing project throughout the twentieth century and well into the twenty-first. It was-and is-part of a more general endeavor of creating an international community governed by law. While the proliferation of international courts has been described elsewhere (Alter 2014; Kingsbury, Krisch, and Stewart 2005; Koskenniemi and Leino 2002; Romano 1999), we know surprisingly little about who are the actual judges sitting at the helm of contemporary judicialized international law and ruling (on) the world? What has once been termed the "invisible college of international lawyers" (Schachter 1977) remains to a large extent invisible to this day. But it is now a much larger college as the proliferation of international courts has resulted in a corresponding multiplication of the number of international judges. Today more than three hundred men and women hold the office of international judge (Swigart and Terris 2014). Most are found in Europe at the two regional courts of the Court of Justice of the European Union and the European Court of Human Rights, but many other regional and global courts also employ a significant number of international judges. Besides some mainly descriptive studies of the international judiciary (Swigart and Terris 2014), we have very little analysis of who these people are and what commonalities they have, notably in terms of education, knowledge, and know-how (see, however, Cohen 2010; Cohen and Madsen 2007; Vauchez 2007).
Oxford Research Encyclopedia of Politics, Oct 26, 2016
Over the past several decades scholars have intensively debated what factors drive globalization.... more Over the past several decades scholars have intensively debated what factors drive globalization. Answers have ranged from the emergence of the information society and the global economy to value-conflicts embedded in different civilizations. A different yet closely related question is who is driving globalization? That is, however, much less studied, even if it is arguably key to making global governance intelligible. A whole list of actors seem to offer possible answers to the question of who the globalizers are: Are they global institutions such as the World Trade Organization (WTO) or the International Criminal Court (ICC); communities of experts providing technocratic solutions; transnational networks of activists seeking to alter global and national politics by pursuing, for example, environmental or human rights agendas; or are they powerful individuals forming transnational elites taking the fate of the global society in their hands at a safe distance from ordinary politics in places such as Brussels, New York, or Davos?
Edward Elgar Publishing eBooks, Feb 26, 2016
Oxford University Press eBooks, Feb 3, 2014
I am almost compelled to begin a chapter on sociological approaches to international courts (ICs)... more I am almost compelled to begin a chapter on sociological approaches to international courts (ICs) by mentioning that one of the fi rst major international judges, Second President of the Permanent Court of International Justice (PCIJ) Max Huber (1874–1960), pioneered the use of sociology in studies of international law in his work as a professor of law at the University of Zurich before being appointed to the international
Nordic Journal of International Law, 2011
Th e article analyses the interface of Denmark and internationalisation of human rights with the ... more Th e article analyses the interface of Denmark and internationalisation of human rights with the goal of examining the transformation of the place and perception of international law in Scandinavia over the last decades. More precisely, the article contrasts two fundamentally diff erent moments of the interface of international human rights and Denmark: fi rst a period of external engagement in which Denmark-and the other Scandinavian countries-developed their position as virtuous defenders of international law and human rights and, secondly, the eventual national implications of international human rights law. Th is approach allows us to more generally analyse the interrelationship between the internationalisation of human rights and its eventual eff ect on Danish legal and political practices. We generally argue that the original politics of virtue in the area of international law and particularly international human rights law declined when international human rights started having national implications, that is, it no longer was simply a good of export. We, moreover, argue that the realistic approach developed in the national context now is having significant spill-over eff ects on Denmark's international policies in the area. Keywords human rights ; Danish foreign policy ; domestication of human rights, changes in perception of international law
Research Handbook on the Sociology of International Law
International Commercial Courts
Transnational Power Elites, 2013
1. Transnational Power Elites: The New Professionals of Governance, Law and Security, Niilo Kaupp... more 1. Transnational Power Elites: The New Professionals of Governance, Law and Security, Niilo Kauppi and Mikael Rask Madsen Part I: Governance 2. The Triumph and Despair of Central Banking, Martin Marcussen 3. The Institutionalisation of the European Administrative Corps as a Transnational Elite, Didier Georgakakis 4. European Diplomats: State Nobility and the Invention of a New Social Group, Rebecca Adler-Nissen 5. Elite Transformations and Diffusion in Foreign Policy: A Socio-Historical Approach to the Emergence of European Power Elites, Karen Gram-Skjoldager and Ann-Christina L. Knudsen Part II: Law 6. The Genesis of Europe: Competing Elites and the Emergence of a European Field of Power, Antonin Cohen 7. Elite European lawyers? The Common Market as new Golden Age or Missed Opportunity, Yves Dezalay and Bryant Garth Part III: Security 8. The Transnational Field of Computerised Exchange of Information in Police Matters and its European Guilds, Didier Bigo 9. The European Military Elite, Frederic Merand and Patrick Barrette Postscript: Understanding Transnational Power Elites, Understanding Europe in the New World Order, Niilo Kauppi and Mikael Rask Madsen
Global Encyclopedia of Public Administration, Public Policy, and Governance, 2018
SSRN Electronic Journal, 2020
This chapter examines language’s role in the formation of legal categories. It situates itself wi... more This chapter examines language’s role in the formation of legal categories. It situates itself within the tension that exists between the certainty that seems to exist when applying legal categories (as realised through principles, rules or standards) and the ambiguity that necessarily comes with them. This chapter holds that legal categories are not just subject to whims of negotiated power dynamics and firm political choices but under-girding those choices are the dynamics of how human beings - i.e. lawyers, lawmakers, jurists, judges, and their respective staffs – operationalise the cognitive processes that enable category building and their application to legal decisions. We focus on the process of law making by cognitive category making. We promote a methodological intervention to examine the processes of classification and categorisation of legal principles to explore the politics of legal practice in action as, in part, an embodied cognitive process. Although public hearings, consultation, and deliberation are all part of the legal process, we focus on how law is performed as a written exercise with the goal of understanding the law through its use of linguistic choices. The result an exploration of how that language displays the cognitive underpinnings of legal category making and the development of legal institutions, legal rules and, more broadly, the law itself.
SSRN Electronic Journal, 2020
Are international institutions more prone to face backlash politics than domestic ones? Are inter... more Are international institutions more prone to face backlash politics than domestic ones? Are international institutions easy targets for satisfying domestic political interests? Using the case of the recent criticism of the European Court of Human Rights, the article explores whether international institutions are more susceptible to face backlash politics than domestic ones due to the dual nature of international politics. The empirical study, focusing on the reform of the European Court of Human Rights through the 2018 Copenhagen Declaration, suggests that preexisting commitments to international institutions might be given up rapidly when significant domestic interests collide with international institutions and their practices. The analysis, however, also shows that backlash politics against international institutions is transformed when seeking institutional reform. Entering a collective bargaining process, backlash objectives are changed by the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society. This suggests that the two-level logic of ordinary international politics has a mediating effect on domestically fuelled backlash campaigns.
SSRN Electronic Journal, 2020
How international are international courts (ICs)? Among lawyers, the notion of ICs comes with a s... more How international are international courts (ICs)? Among lawyers, the notion of ICs comes with a strong public international law connotation. In this book chapter, we trace examples of hybridity in international adjudication, focusing particularly on the admixing of domestic and international judicial forms, practices, and legal cultures. After surveying a number of past and current ICs, we argue that hybridity is not a phenomenon reserved to domestic courts engaging international dimensions of law, but also a characteristic of many ‘proper’ ICs. More specifically, we focus on a number of dimensions of hybridity in relation to ICs, namely: i) the mixed professional backgrounds of international judges (diplomacy, legal academia, the bench, private practitioners, etc.); ii) the mixed legal knowledge being used by ICs (national and international law, different legal traditions, etc.); iii) the mixed jurisdiction of some ICs, blurring the boundaries between domestic (often constitutional) law and international law; iv) the mix of legal and political features of ICs, most notably the operation of commissions as part of the international court systems; and v) the mixed institutional features of ICs with regard to more clearly defined judicial roles and arbitration.
Oxford Scholarship Online, 2018
This chapter analyzes the Caribbean Court of Justice (CCJ), the creation of which was regarded as... more This chapter analyzes the Caribbean Court of Justice (CCJ), the creation of which was regarded as the culmination of the Caribbean’s long and protracted process toward independence from its former colonizers. Formally, the CCJ was instantaneously empowered to hear cases involving Caribbean Community law (Community law). The CCJ was also empowered to replace the Judicial Committee of the Privy Council (JCPC) in London—a last court of appeal for civil and criminal cases from the Caribbean and the most visible remnant of the British Empire’s former rule. The CCJ’s unique double jurisdiction—original over Community law and appellate over other civil and criminal matters—underscores the complex sociopolitical context and transformation of which it is a part. Ultimately, the CCJ’s growing authority has increasingly made the Court the institutional intersection for the convergence of these two different paths toward establishing the Caribbean as a legally integrated regional unity.
SSRN Electronic Journal, 2016
This article is a commentary on two of the latest decisions of the Caribbean Court of Justice (CC... more This article is a commentary on two of the latest decisions of the Caribbean Court of Justice (CCJ), Tomlinson v. Belize, and Tomlinson v. Trinidad and Tobago. In these two cases, the CCJ was called to rule over the legality under the Treaty of Chaguaramas of the Immigration Acts of Belize and Trinidad and Tobago, both of which contain express provisions banning the entry of homosex-uals into those two countries. The CCJ rejected the two cases by claiming that the two Immigration Acts had in fact not been applied by Belize and Trinidad and Tobago. At the same time, the Court ruled that CARICOM law requires member states to admit homosexuals from other CARICOM states, and that Belize and Trinidad and Tobago may therefore not indefinitely retain legislation that appears to conflict with their obligations under Community law. In these two cases, the CCJ also touched upon important legal issues, such as freedom of movement in the CARICOM and indirect and direct effect of Community Law. We argue that these two rulings are important new step for the CCJ with regard to consolidating its position as an authoritative supranational court.
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Papers by mikael R madsen