Although liberal trade and development scholars disagree about the merits of the World Trade Organization (WTO), they both assume that WTO legal obligations restrict states’ regulatory autonomy. This article argues for relaxing this shared assumption by showing that, despite the restrictions imposed by international economic law obligations, states retain considerable flexibility to carve out policy autonomy. The article makes three distinct contributions. First, it analyzes how active WTO members can, through litigation and lawyering, influence rule interpretation to advance their interests. Second, the article redefines the concept of “legal capacity” in the WTO context and introduces the term “developmental legal capacity,” which describes how states can use legal tools and institutions not only as a sword to open new markets but also as a shield for heterodox economic policies. Third, the article offers a comparative analysis of two case studies, Brazil and Mexico, and shows that they have pursued different trade and litigation strategies. While subject to the same WTO obligations, these countries have made different use of their policy space according to their own economic objectives. The article concludes that, despite the apparent rigidity of the WTO, countries following a deliberate strategy can expand their regulatory space to advance their own interests.
Saturday, March 31, 2012
Santos: Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico
Friday, March 30, 2012
Sharp: Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice
While there is increasing momentum behind the notion that the tools of transitional justice should be marshaled in response to large-scale human rights atrocities and physical violence — including murder, rape, torture, disappearances, and other crimes against humanity—the proper role of transitional justice with respect to economic violence — including violations of economic and social rights, corruption, and plunder of natural resources — is far less certain. Historically, if mass atrocities and physical violence have been placed in the transitional justice spotlight, issues of equally devastating economic and social justice have received little attention. The marginalization of the economic within the transitional justice agenda serves to distort our understanding of conflict, and the policies thought to be necessary in the wake of conflict. This article argues that a more nuanced, contextualized, and balanced approach to a wider range of justice issues faced by societies in transition is necessary. To this end, this article proposes that one way to achieve a more balanced approach would be to re-conceptualize and reorient the “transition” of transitional justice not simply as a transition to democracy and the “rule of law,” the paradigm under which the field originated, but as part of a broader transition to “positive peace” in which justice for both physical violence and economic violence receive equal pride of place.
Legality and Legitimacy in Global Affairs focuses on the problematic relationship between legality and legitimacy when a nation (or nations) intervene in the work of other nations. Edited by Mark Juergensmeyer, Richard Falk, and Vesselin Popovski, this volume brings together a wide range of contributors with a broad set of cases that consider when such intervention is legitimate even if it isn't legal--and vice versa. Chapters cover humanitarian intervention, nuclear nonproliferation, military intervention, international criminal tribunals, interventions driven by environmental concerns, and the export of democracy. The book argues that while some interventions may not be technically legal, they may well be legitimate (e.g. Kosovo), and also concentrates on establishing the grounds for legitimate intervention. Some cases, like Iraq, fail the test. Transnational intervention by states and international institutions has increased since the globalization wave of the of the 1990's and especially since 9/11. This book, by focusing on a diverse array of cases, establishes a clear framework for judging the legitimacy of such actions.
Thursday, March 29, 2012
Qin: Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection
The current WTO regime on export restraints comprises two extremes: at one end is the near complete freedom to levy export duties enjoyed by most Members, which renders the WTO discipline on export restrictions largely ineffective; at the other the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose. The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported. The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources. To rectify these problems, the article proposes integrating all stand-alone export concessions into GATT schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties.
Harmonised and uniform international laws are now being spread across different jurisdictions and fields of law, bringing with them an increasing body of scholarship on practical problems and theoretical dimensions. This comprehensive and insightful book focuses on the contributions to the development and understanding of the critical theory of harmonisation.
The contributing authors address a variety of different subjects concerned with harmonisation and the application of legal rules resulting from harmonisation efforts. This study is written by leading scholars engaged in different aspects of harmonisation, and covers both regional harmonisation within the EU and regional human rights treaties, as well as harmonisation with international treaty obligations.
With comparative analysis that contributes to the development of a more general theory on the harmonisation process, this timely book will appeal to EU and international law scholars and practitioners, as well as those looking to future legal harmonisation in other regions in Asia, Latin America and Africa.
The Law of the Sea Convention: US Accession and Globalization, provides valuable insight into a number of contemporary and pressing issues concerning the world’s oceans and their management.
Organized into two major section, Part l presents the findings of senior-level experts addressing the fact that the United States is not a Party to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). Brought together on the occasion of the 34th Annual Conference of the Center for Oceans Law and Policy, University of Virginia School of Law (COLP), panels considered the impact of the lack of US participation in UNCLOS, evaluating topics such as energy and economic development, including the undersea cable industry, as well as ramifications for U.S. national security and navigational rights.
Part ll of the volume examines key trends in commercial shipping, piracy and terrorism, islands and rocks, safety and navigational freedom, marine scientific research, and emerging global oceans policy issues. Presented by a diverse group of experts, the work brings together the results of an international meeting co-sponsored by the Korea Maritime Institute, the Netherlands Institute for the Law of the Sea and COLP.
Viterbo: International Economic Law and Monetary Measures: Limitations to States’ Sovereignty and Dispute Settlement
The 2007–2010 global financial crisis re-opened the debate on the reform of the international monetary and financial system. This well-argued book demonstrates the strategic role of international economic law (IEL) in ensuring international monetary stability and global financial stability.
After discussing the current allocation of powers among IEL institutions, Annamaria Viterbo focuses on monetary measures: exchange restrictions, capital controls and exchange rate manipulations. These three fundamental topics are then examined through the lens of a multi-layered methodology, adopting perspectives from international monetary law, trade law and investment law. The author evaluates how the horizontal sectors in which IEL is traditionally divided interact and how conflicts between norms are avoided or solved. Particular attention is also devoted to the outcomes of trade and investment disputes that deal with monetary measures.
Wednesday, March 28, 2012
- Takele Soboka Bulto, Exception as norm: the local remedies rule in the context of socio-economic rights in the African human rights system
- Thomas M.J. Bateman, Human dignity's false start in the Supreme Court of Canada: equality rights and the Canadian Charter of Rights and Freedoms
- Raed A. Alhargan, The impact of the UN human rights system and human rights INGOs on the Saudi Government with special reference to the spiral model
- Peris Sean Jones, Powering up the people? The politics of indigenous rights implementation: International Labour Organisation Convention 169 and hydroelectric power in Nepal
- Jay Williams, The impact of climate change on indigenous people – the implications for the cultural, spiritual, economic and legal rights of indigenous people
- Laura Sjoberg, Gender, structure, and war: what Waltz couldn't see
- Sarah Song, The boundary problem in democratic theory: why the demos should be bounded by the state
- Michael Zürn, Martin Binder & Matthias Ecker-Ehrhardt, International authority and its politicization
- Andrew Glencross, The uses of ambiguity: representing ‘the people’ and the stability of states unions
- Johannes Urpelainen, How uncertainty about outside options impedes international cooperation
- Rafael Nieto-Navia, Responsabilidad Internacional Del Estado Por Genocidio La Sentencia De La Corte Internacional De Justicia En El Caso De Srebrenica
- José Fernando Gómez-Rojas, Análisis De Argumentación Sobre La Posición De Colombia Frente A La Declaración De Naciones Unidas Sobre Los Derechos De Los Pueblos Indígenas
- Felipe Forero-Mantilla, Conectividad: Alcances Del Derecho A La Propiedad Aborigen Y Tribal En La Jurisprudencia De La Corte Interamericana De Derechos Humanos
- Andrea Padilla-Muñoz, Discapacidad: Contexto, Concepto Y Modelos
- Damián A. González-Salberg, La Efectividad Del Sistema Interamericano De Protección De Los Derechos Humanos: Un Estudio Sobre El Cumplimiento De Las Sentencias De La Corte Interamericana De Derechos Humanos Por Los Estados Miembros
- René Urueña, Mejor Poner Atención: Apuntes Sobre La Participación Ciudadana En El Arbitraje Internacional De Inversión
- Diego López-Medina, Estándares Internacionales Para La Investigación Y Acusación De Delitos Complejos En El Marco De La Justicia Transicional: Su Aplicación Al Caso Colombiano
- Juana Inés Acosta-López & María Carmelina Londoño-Lázaro, El Papel De La Justicia Nacional En La Garantía Del Derecho A Un Recurso Efectivo Internacional
- Laura Victoria García-Matamorros, La Ronda De Doha Para El Desarrollo Ocho Años Después: De Grandes Propósitos A Modestos Acuerdos Florabel Quispe Remón, Problemas Y Perspectivas De Procesos De Integración En América Latina
- Carlos Parra-Dussan, Convención Sobre Los Derechos De Las Personas Con Discapacidad: Antecedentes Y Sus Nuevos Enfoques
- Alfonso Luis Calvo Carvaca & Javier Carrascosa González, Derecho Aplicable A La Constitución De La Adopción Internacional En La Ley Española 54/2007 De 28 De Diciembre (Primera Parte)
- Mariana Bernal Fandiño & Sergio Rojas Quiñones, La Vinculatoriedad De Un Laudo Arbitral Frente A Terceros En La Doctrina Del Collateral Estoppel
- Nelson Remolina-Angarita, ¿Tiene Colombia Un Nivel Adecuado De Protección De Datos Personales A La Luz Del Estándar Europeo?
- José Miguel Júdice, The New Portuguese Arbitration Law
- Matti S. Kurkela, Partial “Milestone”-Awards and Lost Future Profits: Would it Take Part of the Challenge away?
Cole & Askin: Thomas Lubanga: War Crimes Conviction in the First Case at the International Criminal Court
Tuesday, March 27, 2012
Written by over 800 of the world's leading authorities and edited at the premier research institution for international law, this new edition of the definitive reference work on international law contains 1,618 articles covering the full breadth of the subject. Articles address the history and theory of international law; all subfields such as international criminal law, environmental law, and economic law; leading cases; and significant treaties, organizations, armed conflicts, and geographical issues.
Hamlin: International Law and Administrative Insulation: A Comparison of Refugee Status Determination Regimes in the United States, Canada, and Australia
International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision-making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.
Kharouf Gaudig: Le droit international de l'eau douce au Moyen-Orient : Entre souveraineté et coopération
La gestion de l’eau douce s’annonce comme l’un des grands défis des décennies à venir. En 2050, près de la moitié de la population mondiale vivra en effet dans des pays affectés par des pénuries d’eau chroniques.
Élément vital par excellence, l’eau prend une dimension particulière lorsqu’elle traverse les les frontières internationales et enchaîne les États riverains dans une situation d’interdépendance. Dans certains bassins du Moyen-Orient, cette dépendance mutuelle connaît une évolution particulièrement problématique, ce qui s’explique par des facteurs à la fois démographiques, climatiques, environnementaux, économiques et politiques.
La présente étude est fondée sur une analyse approfondie du droit international qui régit la répartition et la préservation des eaux internationales dans cette région semi-aride. Elle met en évidence les lacunes qui rendent difficile la gestion des bassins les plus critiques, à savoir les bassins de l’Euphrate, du Tigre, du Jourdain, et du Nil.
L’une des particularités du travail de l’auteur réside dans la prise en compte des eaux souterraines internationales qui constituent un sujet récent du droit international conventionnel, ainsi que de l’effort de codification de la coutume internationale mené par l’ONU. Plus encore que les eaux de surface, les eaux souterraines souffrent des imperfections d’un régime conventionnel inspiré par le droit international coutumier, et d’accords internationaux dont l’application est dominée par l’attachement à la notion de souveraineté.
Afin de pouvoir faire face au défi de la pénurie de l’eau au Moyen-Orient, le droit international doit prendre en compte l’ensemble des nouvelles données écologiques, économiques et démographiques, en vue de les intégrer dans le contexte politique et de faciliter ainsi les négociations et la coopération inter-étatique.
Le présent ouvrage apporte de précieux éléments de réponse à la problématique de la gestion de l’eau au Moyen-Orient en vue de la prévention et du règlement des conflits qui y sont liés.
- Shashi Tharoor, Security Council Reform: Past, Present, and Future
- Kirsten Ainley, Excesses of Responsibility: The Limits of Law and the Possibilities of Politics
- Daniele Archibugi & David Held, Cosmopolitan Democracy: Paths and Agents
- Review Essay
- Stephen Guest, The Unity and Objectivity of Value
Monday, March 26, 2012
US-UN relations—which way will this always tenuous relationship go?
What exactly is the United Nations? For that matter, why is there still a United Nations at all? In Living with the U.N., international legal scholar Kenneth Anderson analyzes US-UN relations in each major aspect of the United Nations' work—security, human rights and universal values, and development—and addresses the crucial question of whether, when, and how the United States should engage or not engage with the United Nations in its many different organs and activities. He looks at each UN organ and function and suggests the form of engagement that the United States should take toward it, giving workable, pragmatic meaning to "multilateral engagement" across the full range of the United Nations' work.
Cutting through the "alphabet soup" of UN agencies, as well as the utopian idealism that, however noble, often clouds analyses of the United Nations, the book offers principles for a permanent relationship based on ideals and interests between the United States and the United Nations—and provides guidance for long-term US policy that runs far beyond the Obama administration's tenure. Ultimately, Living with the U.N. offers a vision of a better, but also more modest, United Nations—a vision unlikely to be realized but well worth presenting.
We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.
- Sylvia Ifemeje, Mandatory premarital HIV testing policy in Nigeria: a gross violation of the rights of people living with HIV/AIDS
- Catherine Corey Barber, Tackling the evaluation challenge in human rights: assessing the impact of strategic litigation organisations
- Nicholas Lawrence McGeehan, Misunderstood and neglected: the marginalisation of slavery in international law
- Mrinal Debnath, The invisible agenda: civilising mission or missionising civilisation
- Irène Bellier & Martin Préaud, Emerging issues in indigenous rights: transformative effects of the recognition of indigenous peoples
- Luis Abolafia Anguita, Tackling corrective rape in South Africa: the engagement between the LGBT CSOs and the NHRIs (CGE and SAHRC) and its role
- Ailsa M. Watkinson, Constructing the ‘criminal’ – deconstructing the ‘crime’
- Kas Wachala, The tools to combat the war on women's bodies: rape and sexual violence against women in armed conflict
The 1982 United Nations Convention on the Law of the Sea has been frequently referred to as the ‘constitution for the oceans’ and as one of the most important events in the history of modern international law. Representing one of the treaties most widely accepted by the international community, the adoption of the Convention had a long and difficult passage, explained in part by the varied and often irreconcilable interests at stake during the Third United Nations Conference on the Law of the Sea. In this context, one of the primary merits of the Convention is its successful accommodation of the interests involved, an accomplishment which has contributed to the view that the Convention constitutes one of the major compromises in the history of international treaty law-making.
A detailed dispute settlement system represents a significant achievement of the Convention, an aspect on which Dispute Resolution in the Law of the Sea focuses. The book aims at examining the resolution of disputes which have emerged since the Convention’s entry into force and at analyzing the role of compulsory procedures entailing binding decisions through the prism of general international law and jurisprudence. An overall evaluation of the effectiveness of the functioning of the dispute settlement system under the Convention is presented and annexes offer a compendium of the LOSC-related disputes together with various means involved in their resolution as well as maritime delimitation agreements and the provisional arrangements negotiated by States.
- Special Issue: Rio+20 and the global environment: reflections on theory and practice
- Robert Falkner & Bernice Lee, Introduction
- Andrew Hurrell & Sandeep Sengupta, Emerging powers, North–South relations and global climate politics
- Jennifer Clapp & Eric Helleiner, International political economy and the environment: back to the basics?
- Robert Falkner, Global environmentalism and the greening of international society
- Alexander Ovodenko & Robert O. Keohane, Institutional diffusion in international environmental affairs
- Kenneth W. Abbott, Engaging the public and the private in global sustainability governance
- Maria Ivanova, Institutional design and UNEP reform: historical insights on form, function and financing
- Steven Bernstein & Benjamin Cashore, Complex global governance and domestic policies: four pathways of influence
- Lavanya Rajamani, The changing fortunes of differential treatment in the evolution of international environmental law
Sunday, March 25, 2012
We are pleased to announce the second biennial Dean Maxwell and Isle Cohen Doctoral Seminar in International Law to take place on 15 and 16 June 2012, at the Faculty of Law of McGill University, in Montreal.
The Dean Maxwell and Isle Cohen Doctoral Seminar in International Law offers approximately twelve doctoral and post-doctoral researchers with a keen interest in international law the opportunity to present and discuss their research ideas with fellow researchers and professors from the Faculty.
We are currently running a call for papers. Abstracts must be submitted by by April 10, 2012.
Call for papers
The aim of this second seminar is to explore the relationships between law and politics at the international level, with a focus on the competing themes of realism and idealism. The idealists of the 19th and 20th centuries had great ambitions for international law, considering it to be the primary basis for civilization and progress. The influence of realpolitik, they believed, would decline as States increasingly grasped the benefits of international cooperation and the costs of pursuing narrow self-interest.
That idealism seems to have been replaced by cynicism and skepticism on the part of opponents and even of proponents of international law. Many now question the power of norms to constrain State behaviour while others even maintain that the rhetoric of legitimacy has been abused for illegitimate purposes.
That is not to say that international law has declined; to the contrary, international courts and tribunals have proliferated, and the ICJ's docket is busier than ever. But the decisions of such tribunals often seem to be influenced by political considerations, and international judges and arbitrators are often criticized (in much the same way domestic judges are) as unelected actors who are unaccountable to any democratic process, an argument that gives support to those who would rather ignore than abide by those decisions.
Is a return to idealism called for in order to alleviate the pressure on international legal institutions brought to bear by powerful, self-interested actors, and the prevailing cynicism about the relevance of law? Or are idealists themselves shaped by self-interest and political considerations? In fact, one might well ask whether idealism contributes to the politicization of international law as ideologically-driven actors seek to further their own agendas under the cover of seemingly unimpeachable principles.
The various themes that conference papers might address include but are not limited to the following:
- Is our current conception of international law outdated, and does that give more room for political considerations to influence international law in ways deleterious to its legitimacy?
- Does the current state of international law, particularly with respect to the use of force, represent the legalization of politics?
- What is the relationship between law and politics? How do they interrelate and how are they distinct? How well is this distinction managed at the international level?
- Are we witnessing devolution, or a return to the "local," in ways that reject or undermine international law? Is it beneficial or detrimental to the goals that international law should or does pursue that regional actors have gained authority as the de facto decision-makers about major issues, including the propriety of the use of force, in their spheres of influence.
- What are the various sources of political pressures on international decision-makers? Can they overcome these pressures to arrive at decisions based on the rule of law? For example, how could their accountability be enhanced?
- Non-state actors, of all kinds - NGOS, corporations, individuals - play an increasingly prominent role in international law. To what kinds of political influences are they subject? Are they a source of political pressure? To whom are they accountable? To whom should they be accountable?
- Are we witnessing a democratization of international law? How could or should such a process unfold?
- Is the emphasis on international law in the shape of formal norms and institutions misplaced considering the power imbalance between States and people organized as civil society and what role does a grassroots democratic process have in re-shaping international norms and institutions?
- Do concepts such as fragmentation and constitutionalism, or approaches such as Global Administrative Law, shed light on the relationship between law and politics, or on questions of international law's legitimacy?
The selected participants will be expected to prepare in advance a paper in pre-publication work-in-progress form. Participants may also prepare a PowerPoint presentation and/or a hand-out to be distributed to other participants. All of the papers (with the PowerPoint presentations and/or hand-outs, where applicable) will be posted on the McGill website and will be circulated to all participants. All participants will be expected to read the conference papers and prepare to engage in discussion of them.
The Faculty of Law will pay for two nights' accommodation for each of the selected participants, and will also provide meals during the conference itself. Participants will be expected to cover their own travel costs to and from Montreal and other incidental expenses.
Instructions for abstract/paper submission
Doctoral and post-doctoral researchers wishing to participate in the conference must electronically submit an abstract, by April 10, 2012, to Professor Jaye Ellis (email@example.com).
Abstract submissions MUST include the following:
1. Name and contact details of the presenter,
2. Title of the presentation,
3. Abstract of the presentation (600 words),
4. A short biographical profile of the presenter for dissemination (not more than 5 lines).
5. A one-page bio of the presenter
The papers must be sent for posting on the website and circulation amongst the participants by 4 June 2012 at the latest.
For more information, please contact Professors Payam Akhavan (firstname.lastname@example.org), Andrea Bjorklund (email@example.com), or Jaye Ellis (Jaye.Ellis@mcgill.ca).