Regulatory Consistency Requirements in International Trade

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Alan O. Sykes One of the most challenging tasks for international trade agreements is to distinguish protectionist regulation from legitimate regulatory policies. An important set of tools in this regard may be termed “regulatory consistency requirements.” These include the national treatment obligation of GATT, which requires that imported goods be treated no less favorably than “like” domestic goods by regulators. Further consistency requirements were introduced at the formation of the WTO. These newer consistency requirements allow challenges to domestic regulation based on disparate policies toward different products and industries (such as beef and pork, or salmon and baitfish). This paper explores the economic logic and legal scope of consistency requirements in WTO law. The central claim is that narrow consistency requirements such as the national treatment obligation are helpful in the…
Read More

Liberal Internationalism and the Populist Backlash

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Eric A. Posner A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises. Full Article
Read More

A (Qualified) Defense of Secret Agreements

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Ashley S. Deeks This article sets out to describe and defend—with certain qualifications—the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Secret commitments should not always be viewed with suspicion and hostility. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are—counter-intuitively, perhaps—consistent with the U.N. Charter, and in some cases actually advance the Charter's purposes. Full Article
Read More

The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Daniel Bodansky Since the emergence of the international climate change regime in the early 1990s, frustration with the slow pace of the negotiations has bubbled over from time to time in proposals to address climate change through international adjudication.1 I was involved in one such episode two decades ago, as part of a team of international lawyers researching the claims that small island states might bring for climate change damages. A dozen years later, the idea of climate change litigation was revived by the Pacific island state of Palau, which proposed that the United Nations General Assembly request an advisory opinion from the International Court of Justice (I.C.J.) concerning the duties of states to ensure that greenhouse gas emissions from their territory do not harm other states.2 That initiative didn’t…
Read More

Prizeless Wars, Invisible Victories: The Modern Goals of Armed Conflict

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Gabriella Blum By restricting the permissible justifications for war and excluding all tangible benefits from the permissible goals of war, replacing both with an amorphous, however seemingly narrow interest in “defense,” those clear yardsticks have been lost. As a result, we no longer have a clear metric of success that marks the sufficiency of the force used: there is no recognizable moment in which the war has achieved its legitimate goals. Victory can no longer be measured by concrete benefits but only by the absence of concrete harms. And an absence is hard to prove. Modern wars, as a consequence, may have more morally legitimate reasons, but they are also more difficult to judge and to restrict. . . . The justifications and goals of war may have always been…
Read More