Archive for Rationalism

Discussion Paper: “The Concept of International Law” by John Linarelli

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , on March 24, 2009 by jeremyleong

We have posted a new discussion paper on international law and moral philosophy: “The Concept of International Law” by John Linarelli. This very thought provoking piece will be presented an ASIL International Legal Theory Interest Group panel at the Annual ASIL Meeting later this week. Linarelli offers a fresh take on what the enterprise of analytical jurisprudence can do for international law. He examines connected concepts of “normativity”, “validity” and “justice” and puts forth, for discussion, a contractualist account of global justice.

 

The paper can be found at:- http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0209.pdf. As always, comments are welcome.

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International Law as History and Geography Applied

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , , , on February 23, 2009 by jeremyleong

Some time ago, I was taught that international law was history and geography applied. In “Imagining Sovereignty, Managing Secession: The Legal Geography of Eurasia’s ‘Frozen Conflicts’”, Christopher Borgen seeks to validate this proposition to a good measure.

 

In the course of his analysis of the series of ongoing succession-ist crises in the post-Soviet states of Moldova, Georgia and Azerbaijan, Borgen pits respect for the right to self-determination against respect for pre-existing borders. He argues, “(s)ecessionist entities that are able to point to some previously existing boundaries to which they will conform have claims that are more likely to be viewed as legally legitimate…Thus, in an attempt to impose a bright line rule on the messiness of ethnic conflict and separatism, the international community gives weight to cartography and political geography. Being able to show a delineation on a map may not be dispositive of a claim for external self-determination, but it helps.”

 

He goes further, noting the prospects for the Westphalian system. “This legal system presupposes the existence of a state system and for its proper functioning, it has defined rules concerning secession that protects the existence of states. Geographical concepts such as territory and borders are used to this end…But states are still the core of the increasingly complicated international system and, absent any showing of a viable alternative, are still the best hope for broad-based approaches to peace and justice. Long live Westphalia.”

 

It is refreshing piece of inter-disciplinary legal scholarship. However, while reading it, I get the feeling that Borgen is wielding a dated instrument. Geography has always been part of international law. Or at least, it has always been part of the narratives that international lawyers construct. No points for saying it out loud now.

 

More importantly, it is a blunt instrument. Inter-disciplinary international law scholarship has developed far more incisive ways of looking at geography. For instance, law and economics scholars may view geography as an allocation of entitlements. This has the added benefit of accommodating the concept of territorial sovereignty as a basket of rights which may be further allocated. Constructivists may focus on the idealational value of geography. They may look at how territory, as defined on various pieces of parchment, provokes a response from people and policy makers. Behavioral economists may ask if there is a heuristic bias toward protection of territorial rights as opposed to other legal rights. Do we feel differently when faced with an infringement of territorial sovereignty as opposed to a piece of legislation which affords prescriptive jurisdiction?

 

Perhaps, these are more salient issues to examine in the future. The Opinio Juris blogpost which links to the paper is found at http://opiniojuris.org/2009/02/23/imagining-sovereignty-managing-secession-and-fourth-generation-warfare/.  

Lunchtime Talk: Listening to What Developing Countries Say in Disbelief: Robert E. Hudec’s Complex Legacy by Prof. C.L. Lim (HKU)

Posted in Discussion Papers and Commentary, Upcoming Events and Announcements with tags , , , , on February 10, 2009 by jeremyleong

FILA…, in association with the Fletcher School‘s International Law Society, invites you to a lunchtime talk by Prof. C.L. Lim, Professor of Law and Associate Dean at Hong Kong University.

 

*LISTENING TO WHAT DEVELOPING COUNTRIES SAY IN DISBELIEF: ROBERT HUDEC’S COMPLEX LEGACY*

by

Prof. C. L. Lim, Professor of Law and Associate Dean, Hong Kong University Law School

With a special introduction by Prof. Joel P. Trachtman, Professor of International Law, The Fletcher School

*
Lunch shall be provided

Date/Time: 5th March 2009/12.45 pm to 2.30 pm

Venue: The Crowe Room, The Fletcher School of Law & Diplomacy

Kindly RSVP to Jeremy Leong at jeremy.leong@tufts.edu <mailto:jeremy.leong@tufts.edu> (places are limited)

Prof. Lim will speak on international trade law and distributive justice in the development context. In what he terms as the “conventional morality” of trade, Prof. Lim will address existing theories on trade law and developing countries and revisit the legacy of the late Robert E. Hudec. In so doing, build a new paradigm in understanding both the receptiveness and the bias today against arguments about right and wrong in trade law and policy.

More information on the event and the speaker may be found at http://fletcher.tufts.edu/FILA/pdf/Fletcher_5March2009.pdf.

 

 

Fragmentation of International Law: Dispute Settlement

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , on February 3, 2009 by jeremyleong

Here is a new angle for the fragmentation of international law discussion, in particular how individual international tribunals deal with fragmentation. Ruti Teitel and Robert Howse in “Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order” argue against studying tribunalization in an aggregate quantitative assessment. Instead, they advocate a deeper qualitative study of whether tribunalization and fragmentation “introduces new dissonances and points in different and perhaps conflicting normative and institutional directions” to individual tribunals.  

 

In canvassing international human rights tribunals and international economic law tribunals, they find:-

 

Instead international legal order will resemble the messy porous multiple value and constituency politics of democratic pluralism, which is nevertheless underpinned by a more absolutist baseline commitment to the preservation of the human as such. This may still be in a sense fragmentation, but in mirroring non- or anti-hierarchical democratic pluralism this kind of fragmentation enhances rather than menaces international law’s claim to legitimacy… Tribunalization can come to sight both in “humanity law” and in international economic law as an attempt to purify international legal regimes from “politics”-a response to the international law skeptics’ claim or suspicion that international law is just an epiphenomenon or a justificatory rhetoric for power politics.”

 

My view is less hopeful. Teitel and Howse accept the limits of the assumption that “(t)ribunalization means depoliticization.” Tribunalization only leads to a new level of political game with new constraints. Yet, they accept that tribunalization and fragmentation need not be a problem so long as there remains a “commitment to openness in the project of legal hermeneutics” – a praxis driven,

construction and evolution of legal order, whether domestic or international.  

 

At the extreme, this is not merely constructivism but a form of “uber-constructivism”. To extend Wendt’s oft quoted observation that states do not know what they want, Teitel and Howse are postulating that tribunals do not know what they want. This ignores a simple legal and political fact of life for tribunals. Tribunals are creatures of consent and are bound by that consent. Their mandates are spelt out by treaty. Simply put, tribunals are told what they should want. Yes, I agree that sometimes this instruction is not spelt out all that clearly. However, to assume that states parties to dispute settlement treaties have themselves a collective commitment to openness in the project of legal hermeneutics” jumps too many analytical steps.

 

At their most conservative, Teitel and Howse may just be advocating for some sort of universalist interpretative technique which results in harmonization. To date, this exists: the VCLT. But Teitel and Howse appear to be advocating something beyond the VCLT and if so, must, in the absence of further evidence, fall foul of positive international law.

 

The paper can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334289.

 

Views and comments are very welcome!

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.

Financial Crisis: And so the economists agree…

Posted in Discussion Papers and Commentary with tags , , , on December 5, 2008 by jeremyleong

A group of economics Nobel Laureates met in Trieste yesterday at the Nobel Colloquia. Their finding on the financial crisis:-

 

(A) new regulatory framework, setting out the principles for future governance of the banking system, would require broad global agreement. It may also need to include restrictions on the activities of commercial banks to discourage them from excessive indulgence in financial innovation.”

 

So the view from the economics academy is pretty resounding. It is interesting to note that their reason for why global agreement is necessary rests on a very familiar concept to international lawyers: Regulatory competition. Robert Solow opined, “international co-operation on future regulation was essential to prevent regulatory arbitrage, whereby banks can exploit differing approaches to regulation in different jurisdictions.”

 

That still does not resolve the question of how to achieve this cooperation. Dennis Snower suggested starting with building international consensus within the G-20 and the G-7’s FSF. This is not new. See Dani Rodrik’s and Daniel Drezner’s views linked on a previous post. (See https://fletcherfila.wordpress.com/2008/11/18/financial-crisis-views-on-the-g-20-communique-and-international-cooperation/)

 

However, the economist’s work is not in vain. At least, we have a pretty credible and cogent view from one sector of the academy. Can it mobilize political will? Maybe it does at the margins. But how about beyond the margins? What’s missing?

 

The FT’s report from the Nobel Colloquia can be found at http://www.ft.com/cms/s/0/3915c2e4-c155-11dd-831e-000077b07658.html.