Saturday, November 30, 2019

Francois & Hoekman: Behind-the-Border Policies: Assessing and Addressing Non-Tariff Measures

Joseph Francois (Universität Bern) & Bernard Hoekman (European Univ. Institute) have published Behind-the-Border Policies: Assessing and Addressing Non-Tariff Measures (Cambridge Univ. Press 2019). The table of contents is here. Here's the abstract:
One feature of globalization is that barriers to international competition have come to be associated with differences in regulatory policies that increase the costs of engaging in cross-border sales. Such non-tariff measures (NTMs) have attracted growing attention from policy makers and raise important questions for policy research. This book provides a valuable overview of key issues related to NTMs and domestic regulation. It covers the classification and definition of NTMs, new sources of data on NTMs, the impacts of (different types of) NTMs, the challenges that confront efforts to reduce the negative trade effects of NTMs and what can and should be done through international cooperation to promote good practices in the design and implementation of NTMs. The contributors comprise a mix of leading trade policy experts - both academics and practitioners - and younger researchers who have specialized in the analysis of NTMs.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 63, 2019) is out. Contents include:
  • ‘In Clinical Isolation.’ Is there a meaningful place for the World Trade Organization in the future of International Economic Law?
    • Introduced by Paolo Turrini and Angelica Bonfanti
    • Steve Charnovitz, A WTO if you can keep it
    • Giorgio Sacerdoti, The stalemate concerning the Appellate Body of the WTO: What way out?
    • Leonardo Borlini, A crisis looming in the dark: Some remarks on the reform proposals on notifications and transparency
    • Peter-Tobias Stoll, forthcoming

Fassbender & Traisbach: The Limits of Human Rights

Bardo Fassbender (Univ. of St. Gallen - Law) & Knut Traisbach (Univ. of Barcelona - Law) have published The Limits of Human Rights (Oxford Univ. Press 2019). The table of contents is here. Here's the abstract:
What are the limits of human rights, and what do these limits mean? This volume engages critically and constructively with this question to provide a distinct contribution to the contemporary discussion on human rights. Fassbender and Traisbach, along with a group of leading experts in the field, examine the issue from multiple disciplinary perspectives, analysing the limits of our current discourse of human rights. It does so in an original way, and without attempting to deconstruct, or deny, human rights. Each contribution is supplemented by an engaging comment which furthers this important discussion. This combination of perspectives paves the way for further thought for scholars, practitioners, students, and the wider public. Ultimately, this volume provides an exceptionally rich spectrum of viewpoints and arguments across disciplines to offer fresh insights into human rights and its limitations.

New Issue: Review of European, Comparative & International Environmental Law

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 28, no. 3, November 2019) is out. Contents include:
  • Special Issue: New Frontiers in Ocean Environmental Governance
    • Beatriz Martinez Romera & Katrina M. Wyman, New frontiers in ocean environmental governance: Private actors, public goods
    • Alex G. Oude Elferink, Exploring the future of the institutional landscape of the oceans beyond national jurisdiction
    • Ronán Long, Restoring marine environmental damage: Can the Costa Rica v Nicaragua compensation case influence the BBNJ negotiations?
    • Felicity Deane, Anna Huggins, & Md Saiful Karim, Measuring, monitoring, reporting and verification of shipping emissions: Evaluating transparency and answerability
    • Meinhard Doelle & Aldo Chircop, Decarbonizing international shipping: An appraisal of the IMO's Initial Strategy
    • Jesper Jarl Fanø, Enforcement of the 2020 sulphur limit for marine fuels: Restrictions and possibilities for port States to impose fines under UNCLOS
    • Nikolaos Giannopoulos, Global environmental regulation of offshore energy production: Searching for legal standards in ocean governance
    • Makoto Seta, The contribution of the International Organization for Standardization to ocean governance
    • Solène Guggisberg, The roles of nongovernmental actors in improving compliance with fisheries regulations
  • Original Articles
    • Matthew Volk, Spiegl Arie Trouwborst, & Ingrid Natasha Visser, Mission creep in the application of wildlife law: The progressive dilution of legal requirements regarding a wild‐born orca kept for ‘research’ purposes
    • Florian Rabitz, Gene drives and the international biodiversity regime
  • Case Notes
    • Kathleen Garnett, Hold your pipettes: The European Court of Justice's findings in Confédération Paysanne & Others stirs GMOtions

Friday, November 29, 2019

Goeble: Freiraum oder Herrschaftsgebiet: Menschenrecht auf Zugang und völkerrechtliche Prinzipien als Schranken staatlichen Handelns im Internet

Thilo Goeble has published Freiraum oder Herrschaftsgebiet: Menschenrecht auf Zugang und völkerrechtliche Prinzipien als Schranken staatlichen Handelns im Internet (Nomos 2019). Here's the abstract:
Der Autor beschäftigt sich mit der Frage, ob und wie völkerrechtliche Schranken die Macht der Staaten im Internet schon heute begrenzen und wie diese in Zukunft aussehen könnten. Insbesondere geht er auf ein Menschenrecht auf Zugang zum Internet ein. Ein Schwerpunkt bildet die Meinungsäußerungs- und Informationsfreiheit auf der Ebene der Vereinten Nationen sowie des Europarates, die aus der Sichtweise verschiedener Eingriffsdimensionen untersucht werden. Hierzu erfolgt eine ausführliche Auswertung der bestehenden Dokumente und der Rechtsprechung. Im Anschluss liefert der Autor einen eigenen Formulierungsvorschlag für ein Menschenrecht auf Zugang zum Internet de lege ferenda. Aufgrund der Qualifizierung des Internets als internationaler (Über-)Raum werden des Weiteren völkerrechtliche Schranken, die sich insbesondere aus dem Bereich des Umweltvölkerrechts, den Regeln der internationalen Beziehungen und des humanitären Völkerrechts ergeben, auf ihre Übertragbarkeit hin untersucht.

Dojčinović: Propaganda and International Criminal Law: From Cognition to Criminality

Predrag Dojčinović has published Propaganda and International Criminal Law: From Cognition to Criminality (Routledge 2019). Here's the abstract:
This book addresses the conceptual and evidentiary issues relating to the treatment of propaganda in international criminal law. Bringing together an interdisciplinary range of scholars, researchers and legal practitioners from Africa, Australia, Europe and the United States, the book provides an in-depth analysis of the nature, position and role of the concept of propaganda in mass atrocity crimes trials. A sequel to the earlier Propaganda, War Crimes Trials and International Law: From Speakers’ Corner to War Crimes (Routledge, 2011) this book is the first to synthesize the knowledge, procedures and methods of international criminal law with the social cognitive sciences. Including a comprehensive overview of the most relevant case law, jurisprudence and scientific studies, the book also offers a series of practical insights and strategies for both academics and legal professionals.

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 101, no. 910, April 2019) is out. The theme is: "Memory and War." Contents include:
  • Vincent Bernard, Memory: a new humanitarian frontier
  • Interview with Boris Cyrulnik: Director of studies at the Université du Sud, Toulon-Var
  • Hélène Dumas, When children remember: A history of the Tutsi genocide through the eyes of children (1994–2006)
  • David Rieff, …And if there was also a duty to forget, how would we think about history then?
  • Marijn C. W. Kroes & Rain Liivoja, Eradicating war memories: Neuroscientific reality and ethical concerns
  • Jill Stockwell, Does individual and collective remembrance of past violence impede or foster reconciliation? From Argentina to Sri Lanka
  • Phuong N. Pham, Mychelle Balthazard, Niamh Gibbons, & Patrick Vinck, Perspectives on memory, forgiveness and reconciliation in Cambodia's post-Khmer Rouge society
  • Aaron Weah, Declining ethnic relations in post-war Liberia: The transmission of violent memories
  • Germán Parra Gallego, The role of freedom of expression in the construction of historical memory
  • Cédric Cotter, The role of experience and the place of history in the writings of ICRC presidents
  • Pierre Ryter, A personal experience in Turkey, Iran and China: The need for the ICRC to adapt in a multipolar world
  • Gilbert Holleufer, Heroic memory and contemporary war
  • Danielle Drozdzewski, Emma Waterton, & Shanti Sumartojo, Cultural memory and identity in the context of war: Experiential, place-based and political concerns
  • Helen Walasek, Cultural heritage and memory after ethnic cleansing in post-conflict Bosnia-Herzegovina
  • Annaïg Lefeuvre, The Shoah Memorial: A history retraced from the Drancy site
  • Annette Becker, Dark tourism: The “heritagization” of sites of suffering, with an emphasis on memorials of the genocide perpetrated against the Tutsi of Rwanda
  • Michael N. Schmitt, Wired warfare 3.0: Protecting the civilian population during cyber operations

Ciampi: History and International Law: An Intertwined Relationship

Annalisa Ciampi (Univ. of Verona - Law) has published History and International Law: An Intertwined Relationship (Edward Elgar Publishing 2019). Contents include:
  • Giorgio Gaja, Forward
  • Rolf Einar Fife, Creative Forces and Institution Building in International Law
  • Stefan Troebst, Eastern Europe’s Imprint on Modern International Law
  • Annalisa Ciampi, History, Isolation and Effectiveness of International Human Rights Law
  • Sionaidh Douglas-Scott, EU Human Rights Law and History: A Tale of Three Narratives
  • Gilad Ben-Nun, ‘Treaty after Trauma’: ‘Protection for All’ in the Fourth Geneva Convention
  • Olympia Bekou, History and Core International Crimes: Friends or Foes?
  • Katarina Ristic, ‘Imaginary Trials’: The Legacy of the ICTY in Croatia, Bosnia and Serbia
  • Erika de Wet, Gilad Ben-Nun, Olympia Bekou, Annalisa Ciampi, Sionaidh Douglas-Scott, Rolf Einar Fife, Katarina Ristic, Stefan Troebst, & Erika de Wet, The Rise and Demise of the ICC Relationship with African States and the AU

New Issue: Korean Journal of International and Comparative Law

The latest issue of the Korean Journal of International and Comparative Law (Vol. 7, no. 2, 2019) is out. Contents include:
  • Historic Rights and the Law of the Sea
    • Anthony Carty, Carl Schmitt, Nomos of the Earth, and the Question of Historic Title in International Law
    • Christopher Whomersley, The International Law of the Sea: Historic and Similar Rights in the British Experience
    • Ying Wang, Rethinking the Concept of Historic Rights in International Law
    • Edwin Egede, Historic Rights in African State Practice
    • Anastasia Telesetsky, Maritime Historic Rights in United States Jurisprudence
    • Qiang Ye, Historic Rights in the South China Sea: A Chinese Perspective
    • Sourabh Gupta, Historic Fishing Rights in Foreign Exclusive Maritime Zones: Preserved or Proscribed by UNCLOS?
    • Renyuan Li, Legality of China’s Entitlements of Historic Rights beyond the UNCLOS in the South China Sea: An Analysis of the Negotiation History
    • Chenhong Liu, Regional Customary International Law Related to China’s Historic Rights in the South China Sea

New Issue: International Journal of Transitional Justice

The latest issue of the International Journal of Transitional Justice (Vol. 12, no. 3, November 2019) is out. Contents include:
  • Editorial Note
    • M Brinton Lykes & Hugo van der Merwe, Critical Reflexivity and Transitional Justice Praxis: Solidarity, Accompaniment and Intermediarity
  • Articles
    • Larissa van den Herik & Mirjam van Reisen, International Commissions of Inquiry in a Networked World: Unveiling the Roles of Diasporas through an Eritrean Case Study
    • Fidelma Ashe, Sexuality and Gender Identity in Transitional Societies: Peacebuilding and Counterhegemonic Politics
    • Adriana Rudling, What’s Inside the Box? Mapping Agency and Conflict within Victims’ Organizations
    • Philipp Wesche, Business Actors, Paramilitaries and Transitional Criminal Justice in Colombia
    • Andrea Purdeková, Rectified Sites of Violence from Westgate to Lampedusa: Exploring the Link between Public Amnesia and Conflict in Ongoing Confrontations
    • Cynthia E Milton & Anne-Marie Reynaud, Archives, Museums and Sacred Storage: Dealing with the Afterlife of the Truth and Reconciliation Commission of Canada
    • Elizabeth A Cole & Pamina Firchow, Reconciliation Barometers: Tools for Postconflict Policy Design
    • Dustin N Sharp, What Would Satisfy Us? Taking Stock of Critical Approaches to Transitional Justice
    • Elham Kazemi, Transitional Justice in Tunisia: When Religion Meets State
  • Review Essay
    • Kiran Grewal, The Role of Victims in Transitional Justice: Agency, Cooption and Exclusion

Bado: The Court of Justice of the Economic Community of West African States as a Constitutional Court

Kangnikoé Bado has published The Court of Justice of the Economic Community of West African States as a Constitutional Court: Member States obligations resulting from the Court´s rulings (Nomos 2019). Here's the abstract:
One of the major innovations made by the Economic Community of West African States (ECOWAS) is the unequivocal granting of a supranational role to the Court of Justice of the organisation. However, its human rights mandate has led to real and potential tensions within the ECOWAS legal order. The tensions stem from the legal force of judgments of constitutional courts of member states and the admissibility of individual petitions before the Court. This work identifies some deficiencies in the current regime of the human rights mandate of the Court. Gaps exist at the level of the member states’ constitutional order, as well as at the community level. The supranational competence of the jurisdiction must be implemented by the possibility of ordering concrete measures to be taken by states for the reparation of human rights violations. Innovative solutions are suggested in this work in order to fill procedural and substantial gaps in the protection system established in West Africa.

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 19, no. 6, December 2019) is out. Contents include:
  • Noémie Laurens & Jean-Frédéric Morin, Negotiating environmental protection in trade agreements: A regime shift or a tactical linkage?
  • Jesse L. Reynolds, An economic analysis of international environmental rights
  • Juan He, Do unilateral trade measures really catalyze multilateral environmental agreements?
  • Stephan Hoch, Axel Michaelowa, Aglaja Espelage, & Anne-Kathrin Weber, Governing complexity: How can the interplay of multilateral environmental agreements be harnessed for effective international market-based climate policy instruments?
  • Anna A. Klis, Identity and equal treatment in negative externality agreements
  • Hyun Jung Kim, Inducing state compliance with international fisheries law: lessons from two case studies concerning the Republic of Korea’s IUU fishing

Thursday, November 28, 2019

New Issue: Air & Space Law

The latest issue of Air & Space Law (Vol. 44, no. 6, 2019) is out. Contents include:
  • Aurélia Cadain & Chloé Rezlan, Overview of Recent Case-Law and Trends on Regulation (EC) 261/2004, Both from a European and a French Law Perspective
  • Jochem Croon & Fina Verbeek, Regulation (EC) 261/2004 and Internal Strikes Under Article 5.3: ‘It’s All About Control, Stupid’
  • Geoffrey Deasy, European Union Competition Law Developments in the Aviation Sector: January to June 2019
  • Jeffrey Ellis, The Nature of Some Subjects Requires Uniform Regulation and Aviation Is a Prime Example
  • Matthias Reuleaux, Morten L. Hans Jakobsen, & Peter Sand, Aircraft Repossession Under Leasing Arrangements Pursuant to Article 83bis Chicago Convention
  • Jenni Tapio & Alexander Soucek, National Implementation of Non-Legally Binding Instruments: Managing Uncertainty in Space Law?
  • Chloe A. S. Challinor, Defending Just Culture in Air Accident Investigations: The Decision of the English High Court in British Broadcasting Corporation & Anor V. Secretary of State for Transport & Anor

New Issue: The Law and Practice of International Courts and Tribunals

The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 18, no. 2, 2019) is out. Contents include:
  • Neil B. Nucup, Infallible or Final?: Revisiting the Legitimacy of the International Court of Justice as the “Invisible” International Supreme Court
  • Paula Wojcikiewicz Almeida, International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ
  • Ksenia Polonskaya, International Court of Justice: The Role of Consent in the Context of Judicial Propriety Deconstructed in Light of Chagos Archipelago
  • Gaiane Nuridzhanian, Ne Bis In Idem in Article 20(3) of the Rome Statute and Non-State Courts
  • Ciarán Burke & Alexandra Molitorisová, (Not) Proving the Public Good: Scientific Evidence and the Margin of Appreciation

Call for Nominations: Prix Daniel Vignes

L’Association Internationale du Droit de la Mer (AssIDMer) met au concours, tous les deux ans, à l’occasion de son Colloque ordinaire, un prix pour le meilleur article publié dans une revue ou une œuvre collective, aux fins de la diffusion de la connaissance du Droit international de la mer. Les articles peuvent être rédigés en anglais, espagnol, français, italien, portugais. A la seule exception des Membres et anciens Membres du Conseil de l’Association, le concours est ouvert à toute personne âgée de moins de 40 ans à la date limite d’envoi de l’article.

New Issue: Criminal Law Forum

The latest issue of Criminal Law Forum (Vol. 30, no. 4, December 2019) is out. Contents include:
  • Boaz Sangero, Safe Convictions
  • Paul Bleakley, A Thin-Slice of Institutionalised Police Brutality: A Tradition of Excessive Force in the Chicago Police Department
  • Pieter G. du Toit, A critical evaluation of the prohibition on the South African prosecuting authority to appeal against decisions on questions of fact

Call for Papers: Multiplicity: IR’s Strangely Familiar Common Ground

The project Multiplicity: Common Ground for International Relations has issued a call for papers for a workshop to take place at EISA's 7th European Workshops in International Studies, in Brussels, on July 1-4, 2020. The theme is: "Multiplicity: IR’s Strangely Familiar Common Ground." The call is here.

Call for Papers: Multiple Legalities: Conflict and Entanglement in the Global Legal Order

The research group Overlapping Spheres of Authority and Interface Conflicts in the Global Order has issued a call for papers for a conference on "Multiple Legalities: Conflict and Entanglement in the Global Legal Order," which will take place July 6-8, 2020, in Berlin. The call is here.

Wednesday, November 27, 2019

New Journal: European Convention on Human Rights Law Review

An announcement of a new journal: the European Convention on Human Rights Law Review:
The ECHR Law Review (ECLR) is a new law review published by BRILL and devoted exclusively to the legal regime of the European Convention on Human Rights (ECHR). Its editors-in-chief are Dr K. Dzehtsiarou and Dr V.P. Tzevelekos. The editorial and advisory boards include world leading scholars and practitioners in the law of the ECHR. One of the missions of the journal is to connect law and practice, and explore the ECHR from a multi-disciplinary perspective. ECLR will be publishing legal scholarship on the protection of fundamental human rights within the ECHR framework and on its implications for other regional human rights regimes. It is a forum for, inter alia, international law, comparative (constitutional) law, human rights law, and philosophy of law analysis of the practice and procedures of the ECHR regime. While favouring legal (doctrinal, theoretical and philosophical) analysis, ECLR also publishes multi-disciplinary works at the crossroads of law, history, political science and economics. It is open to all methods and schools of thought, including, comparative, doctrinal, quantitative and economic analysis of (case) law. ECLR accepts submissions of longer articles (up to 18000 words), case comments (up to 10000 words) and book reviews. Manuscripts should be submitted through this link. More information, including instructions to authors, is available here. Twitter: @LawECHR

Call for Engaged Listeners: The Individual in International Law – History and Theory (Reminder)

A call for engaged listeners has been issued by the Max Planck Institute for Comparative Public Law and International Law for a workshop on "The Individual in International Law – History and Theory," which will take place June 25-26, 2020, in Berlin. The call is here. The deadline is November 30, 2019.

Dederer & Singer: Adverse Cyber Operations: Causality, Attribution, Evidence, and Due Diligence

Hans-Georg Dederer (Univ. of Passau) & Tassilo Singer (Univ. of Passau) have posted Adverse Cyber Operations: Causality, Attribution, Evidence, and Due Diligence (International Law Studies, Vol. 95, 2019). Here's the abstract:
Adverse cyber operations against States are on the rise, and so are the legal challenges related to such incidents under public international law. This article will not delve into already intensely debated problems of classification, such as whether adverse cyber operations constitute “armed attacks” or “use of force.” Rather, the article will focus on causality and attribution with special regard to problems of evidence. In particular, the article will elaborate on the applicable standards of proof to be met by the victim State when submitting, or having to submit, evidence to justify self-defense or countermeasures against the State of origin. We propose a “sliding scale” of standards of proof depending on the gravity, or seriousness, of the deviation from public international law. Accordingly, the standard of proof differs depending on whether the victim State strikes back through use of force or through action below the use of force threshold. Importantly, even in light of a high standard of proof, the burden of proof incumbent on the victim State may be discharged based on indirect evidence only. Particularly for satisfying proof of attribution, we suggest distinguishing between cyber operations traceable to State IT systems of the State of origin and cyber operations traceable to private IT systems located within the State of origin. This distinction is significant with regard to the requirements for a rebuttal of attribution by the State of origin. These requirements are expressions of due diligence obligations on the part of the State of origin.

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 21, no. 5, 2019) is out. Contents include:
  • Special Issue: Judicial Dialogue in Human Rights
    • Elżbieta Karska & Karol Karski, Judicial Dialogue in Human Rights: Introductory Remarks
    • Bożena Gronowska, Judicial Dialogue in the Human Rights Domain: Thoughts and Selected Dilemmas
    • Anna Podolska, Between Informal Dialogue and Official Criticism: The Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights concerning the Protection of Human Rights and Mutual Recognition of Judgments
    • Katarzyna Trzpis-Szysz, Judicial Dialogue after the Genocide in Rwanda: The Example of Cooperation between the International Criminal Tribunal for Rwanda and Gacaca Courts
    • Bartłomiej Oręziak, Judicial Dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the Field of Legal Liability for Posting Hyperlinks
    • Łukasz Dawid Dąbrowski, Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights Protection System
    • Paul Weismann, Peoples’ Right to Self-Determination: The Case of the Chagos Archipelago

Monday, November 25, 2019

Workshop: The End of International Public Authority? Contestation, Crisis, and Resilience in International Institutions

On November 28-29, 2019, the Max Planck Institute for Comparative Public Law and International Law will host a workshop on "The End of International Public Authority? Contestation, Crisis, and Resilience in International Institutions." The program is here.

Koskenniemi: International Law and the Far Right: Reflections on Law and Cynicism

Martti Koskenniemi (Univ. of Helsinki - Law) has published International Law and the Far Right: Reflections on Law and Cynicism (Fourth Annual T.M.C. Asser Lecture). Here's the abstract:

Since the emergence of the profession in the 1870s, international lawyers have lent themselves to supporting various political projects, from ruling of empire to decolonisation, from supporting national self-determination to arguing in favour of global governance of the transnational economy. They have celebrated sovereignty and supported human rights.

The recent backlash against global rule and the international institutions of the liberal 1990s, should be viewed as a political attack from a relatively privileged part of the world on the system of values and distributive power that have governed post-1968 internationalism. This backlash is often treated as a social pathology, arisen from the anger felt by European and American middle classes “left behind” by globalisation.

I do not share this analysis. Whatever the social composition of the “backlash”, the policies of its leaders are neither reformist nor “conservative”. They are reactionary, and the question is, how to devise an effective policy to counter them.

The coming struggle will be about whether reactionary, colonialist, white and male supremacist values will play a role in the international world after globalisation. If international law is not to become a servant to far right policies, or fall into irrelevance, it had better sharpen its strategic insights. Alongside self-criticism, this involves taking a break from the interminable production of minor reforms. Greater openness is needed. Not to “populist” leaders, but to problems of global inequality.

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 18, no. 3, September 2019) is out. Contents include:
  • Articles
    • Sienho Yee, Notes on the International Court of Justice (Part 8)—Interim Accord (FYROM v. Greece) and the Settlement of the Macedonian Name Dispute: Knowing and Seizing upon Many Things or One Big Thing in Treaty Interpretation and International Dispute Settlement in General
    • Thomas Schwartz & John Yoo, Asian Territorial Disputes and the 1951 San Francisco Peace Treaty: The Case of Dokdo
    • Matthew Garrod, The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime
    • Stefan Talmon, The United States under President Trump: Gravedigger of International Law
    • Xinxiang Shi, Official Acts and Beyond: Towards an Accurate Interpretation of Diplomatic Immunity Ratione Materiae under the Vienna Convention on Diplomatic Relations
  • Comments
    • Chao Wang, Invocation of National Security Exceptions under GATT Article XXI: Jurisdiction to Review and Standard of Review

Sunday, November 24, 2019

Borlini: When the Leviathan Goes to the Market: A Critical Evaluation of the Rules Governing State-Owned Enterprises in Trade Agreements

Leonardo Borlini (Bocconi Univ.) has posted When the Leviathan Goes to the Market: A Critical Evaluation of the Rules Governing State-Owned Enterprises in Trade Agreements (Leiden Journal of International Law, forthcoming). Here's the abstract:
State-owned enterprises have long constituted, and are likely to remain, an important instrument in any government’s toolbox for a variety of economic and societal goals. However, the significant extent of state ownership among the world’s top companies, and the quantitative and qualitative transformation and hybrid nature of SOEs, raises the issue of their impact on international trade flows and the competitive process. This article addresses the question of how international trade agreements regulate SOEs, with a view to furthering the international contestability of markets, while, at the same time, allowing governments to provide support to SOEs as a means of dealing with market failures and the pursuit of public goals. After a brief introduction to contemporary state capitalism, the argument is developed in three main parts. The first part situates SOEs within the GATT and WTO frameworks and elaborates on the findings of previous literature with a view to highlighting the main shortcomings of such discipline. The second part re-examines the notion of ‘competitive neutrality’ by locating contemporary trade agreements within the larger contextual relationships between the state, the market and the social, and thus reconstructs the normative rationales and general policy implications of the disciplines under examination. Against this background, the third part critically assesses the new disciplines on SOEs in recent PTAs. The main conclusion is that the search for binding rules has not led to balanced regimes and, despite the wider scope of the new rules, notable problems that have emerged within the WTO context remain unsolved.