Archive for January, 2009

Fragmentation of International Law: Forum Shopping

Posted in General Thoughts and Comments, Journal Watch with tags , , , on January 16, 2009 by jeremyleong

The fragmentation of international law has recently taken a new and practical twist in a narrow field of international law.

 

WTO law is no stranger to fragmentation. The “trade and …” agenda is rife with debate over how international environmental law, international human rights law etc interacts with international trade law. But now, there is a re-newed discussion of how regional trade agreements (“RTAs”) interact with WTO law in a dispute settlement context.

 

First, where parties to a trade dispute are members to both the WTO and a RTA and the RTA in question provides for dispute settlement, which dispute settlement clause should prevail? The Mexico-Soft Drinks and Argentina-Poultry cases in the WTO show that this ambiguity allows disputants to forum shop. Moreover, concurrent jurisdiction between the two allows losers to have a second bite of the cherry.

 

In the most recent edition of Journal of International Economic Law, CL Lim and Henry Gao (in “Saving the WTO from the Risk of Irrelevance”) advocate that RTA disputes should be resolved through the WTO DSU system. In the context of recent WTO Panel and Appellate Body decisions in Mexico-Soft Drinks and Argentina-Poultry, they argue that the WTO DSB may be the most effective forum to resolve RTA disputes as it provides a multilateral solution without sacrificing the utility of bilateral consultations.

 

This leads to the second question. Which law should a tribunal apply? WTO law or RTA law? Lim and Gao suggest amending the DSU to allow WTO tribunals to apply RTA law. I refrain from commenting on the political viability of this suggestion for the moment. In the absence of such an amendment, what can tribunals do? The International Law Commission has suggested various principles such as allowing lex specialis to supercede lex generalis and having later law prevail over earlier law. This has been considered by WTO tribunals. Yet, these principles mask what appears to be the development of a body of jurisprudence concerning choice of international law.

 

Can existing principles which apply to conflicts of domestic law be used analogously in conflicts of international law? Prof. Trachtman explains the international allocation of jurisdiction between states in terms of property and liability rules. This assumes that states may or may not have an interest in having their law applied extra-territorially. But how about between international and/or regional institutions? Can it be said that there is jurisdictional competition between the WTO and RTA organizations to resolve disputes and apply their own law?

 

I know that more work on choice of international law is being carried out and will update accordingly. Meanwhile, I would love to hear any comments or views out there.

Discussion Paper: “Regime Proliferation and the Tragedy of the Global Institutional Commons” by Daniel W. Drezner

Posted in Discussion Papers and Commentary, General Thoughts and Comments, Journal Watch with tags , , , on January 16, 2009 by jeremyleong

We have posted our first discussion paper of 2009. Prof. Daniel Drezner has kindly contributed “Regime Proliferation and the Tragedy of the Global Institutional Commons”. This paper examines the aftermath of the 2001 Doha Declaration on intellectual property rights and public health and recent efforts to create a weapons of mass destruction interdiction regime. It argues that “(a)fter a certain point, proliferation shifts global governance structures from rule-based outcomes to power-based outcomes – because institutional proliferation erodes the causal mechanisms through which regimes ostensibly strengthen international cooperation.”

 

This discussion also calls to mind a couple of papers which appeared in a symposium organized by the Cornell International Law Journal. In “Global Institutional Reform and Global Social Movements: From False Promise to Realistic Hope”, Richard W. Miller argues that the search for “institutional fixes” distracts from more productive discourse about improving global governance by thinking about global social movements. He describes existing social movements as “an international bunch of people” who seek to relieve the inequities and burdens of globalization, etc etc. They regard each other as allies, wish each other’s causes well, share information sources etc etc. Their purpose: presumably to change mindsets. Thus, in contrast to Drezner’s rationalist approach, Miller’s thesis appears rooted in constructivism. See (2006) 39 Cornell International Law Journal 501.

 

Robert Hockett in “Institutional Fixes versus Fixed Institutions” (2006) 39 Cornell International Law Journal 537 offers a bridge between the rationalist and the constructivist. He notes, “(a)n institution is often a kind of transition belt or drive shaft for the effectuation of social movements’ aims themselves; and it is, even more than that, structurally speaking a kind of blueprint for what the movement actually envisages as endpoint if that movement has fully theorized and specified what its ultimate aims are. We might liken the institution to a clutch or a drive shaft, and we might then liken the movement to an engine. Or we might say that the institution is the material embodiment of what the movement articulates by way of a blueprint for a better world.”

 

We hope to continue our discussion on regime proliferation and on the fragmentation of international law in the very near future.

 

Meanwhile, Dan Drezner’s paper may be found at http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0109.pdf.

International Criminal Justice Symposium Video Link

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , on January 10, 2009 by jeremyleong

Happy New Year! Apologies for the radio silence over the last few weeks.

Normal service resumes.

We kick start the New Year with video links to last year’s international criminal justice symposium at the Fletcher School. We are grateful to the Fletcher School’s law faculty for providing the link.

Please see http://fletcher.tufts.edu/InternationalCriminalJustice2008/video.shtml