The World Trade Organization (WTO) dispute settlement mechanism has taken great strides towards establishing the rule of law in international trade, that is, a rule-oriented international trading system. In the old dispute settlement system under the General Agreement on Tariffs and Trade (GATT) 1947, which preceded the present dispute settlement system, the contracting parties established panels to resolve trade disputes when they arose among Contracting Parties regarding the interpretation and application of rules of the GATT 1947. This article looks at the role of the Appellate Body in the WTO, and provides an overview of the major principles of WTO jurisprudence that have been established by the Appellate Body. It also considers two sets of critique: for some the Appellate Body has been too literal in its interpretations; whereas, for others, the Appellate Body has overstepped its mandate by going beyond interpretation and into rule making.
Alan O'Neil Sykes
What is the purpose of the World Trade Organization (WTO) dispute settlement mechanism (DSM)? This seemingly simple question has become a source of considerable academic debate. All commentators agree that one purpose of the system is to encourage compliance with WTO obligations, at least some of the time. Beyond this point of partial agreement, however, lie a variety of additional perspectives. This article investigates the extent to which the purpose of the DSM is to ensure compliance, pointing to differing views on whether the system is meant to facilitate efficient breach (and hence the limits of retaliation) or if it is meant to rebalance concessions following breach of obligations. It looks at the legal debate on the purpose of the DSM and explains how it allows members the option to violate WTO obligations for a measured ‘price’ that is tied to the harm done by the violation to the complainants. The article argues that the logic of the system can be best understood ‘as a way to facilitate efficient adjustment of the bargain over time’.
Solomon Benatar, David Sanders, and Stephen Gill
This chapter analyses the political influences that shaped reform of healthcare service provision and financing during four decades of neoliberal capitalist dominance, with its emphasis on individualism, consumerism, competitiveness, and the capitalist market in determining social needs and healthcare priorities. New financing sources and market competition, which shaped adoption of reforms, are contrasted with earlier reform efforts that were premised on the socialisation of risk and the universalisation of healthcare provision on an equitable basis for all. Transformation of state forms promoted the market and substantially weakened capacities to provide for basic needs. Controversy over these outcomes has coincided with astounding increases in global inequality, particularly since the 2008 global financial meltdown, with devastating and unequal effects on the health of populations. The chapter concludes by returning to the quest for universal health coverage by reaffirming the “Health for All” principles of social justice and solidarity within a ‘post-Washington consensus’.
Constitutional review, the power of courts to strike down incompatible legislation and administrative action, is an innovation of the American constitutional order that has become a norm of democratic constitution writing. Some political systems, such as the United States', have developed vigorous constitutional review, even without an explicit textual mandate. Judicial review originates as an expression of Anglo-American natural law tradition in an age of positive legislation. We can characterize the traditional theories for the spread of constitutional review as institutional–functional or ideational in character. Of course, the various theories are hardly mutually exclusive. In some cases, they clearly reinforce one another, such as the iconic German case that involved both federalism and rights rationales. This article traces the spread of constitutional review and evaluates the various political explanations for its establishment, development, and spread, focusing on the mutually reinforcing roles of ideas and institutions. It also examines why some constitutional courts fail and others succeed.
Bryant G. Garth
The “globalization of the law” became a central topic in legal and social science scholarship in the 1980s. The topic refers to “legalization” diffused into two related kinds of domains. First, it refers to the development of and enhanced role for legal rules and procedures in transnational political and economic matters. Second, the topic refers to the increased importance of the domestic “rule of law” in countries throughout the world. The prominence of the United States in the recent story of the globalization of law supports the analogy between the globalization of law and the history of colonialism. Both the strong position of lawyers after World War II in the United States and their ideological orientation reflected an historical pattern that manifested itself early in U.S. foreign policy. This article discusses the globalization of law as well as international trade and the World Trade Organization, international human rights, import and export, and the future of anti-colonial colonialism as the globalization of law.
This chapter investigates the relationship between the concepts of international justice and international law. It suggests that the idea of an international rule of law is constructed on procedural, rather than substantive, accounts of justice. Against the background of two opposing tendencies in the international legal order that influence ideas of international justice, namely the Westphalian and UN Charter accounts, the chapter considers various attempts to incorporate notions of justice in the international legal order. Examples are drawn from the 1970s campaign for a New International Economic Order at the UN, from international adjudication, from feminist campaigns, and from the work of international legal scholars such as Thomas Franck and Steven Ratner. The chapter argues that the concept of international justice has become associated largely with international criminal law, and indicates the limitations of this linkage.
This chapter probes the way in which description, prescription, and critique form a congeries of approaches that together, in turn, produce an intellectual field that might be described as the political theory of international law (though it is hardly one thing, and some of it refuses altogether the injunctions of traditional political theory). All of this will lead to an examination of two particular problems of international diplomacy to which political theories of international law appear to have responded: namely, intervention and war crimes trials, and an engagement with two interdisciplinary turns (to History and to International Relations) through which international law has enlivened its habits of thought and theoretical inclinations.
International law is a set of rules intended to bind states in their relationships with each other. It is largely designed to apply to states, both to constrain (the laws of war) and to empower them (law of sovereignty). Increasingly, international law has been codified, so that today most international obligations are contained in treaty form, although historically customary international law played a relatively more important role than it does today. The role of international law in informing foreign policy decision making has waxed and waned over the course of the past century. It has also varied significantly across countries. It is striking the extent to which international interactions have become reflected in and regulated by formal state-to-state agreements. This article examines international law and international relations, multilateral treaties, political theories of international law (realism, rational/functionalist theories, constructivist approaches), and legal agreements. It also discusses the implementation, compliance, and effectiveness of international law.
José E. Alvarez
This chapter surveys how international legal scholars have catalogued and sought to explain the legal impact of the UN even though its political and judicial organs have not been delegated the power to make law. It explains how the UN attempts to adhere to, but also challenges, the traditional sources of international law—treaties, custom, and general principles—contained in the Statute of the International Court of Justice. It enumerates how the turn to UN system organizations—amidst newly empowered non-state actors, increasing resort to ‘soft’ or ‘informal’ norms, and recourse to institutionalized processes—have led to distinct legal frameworks such as process or deliberative theories, interdisciplinary ‘law and’ approaches, feminist and ‘Third World’ critiques, and scholarly work that renews attention to or revises legal positivism.
Walter F. Baber and Robert V. Bartlett
International law is a collection of agreements that represent the will and consent of nation-states with respect to the rules that govern their relationships. Treaties are the increasingly predominant form of international law. International law also can be found in international custom. As a system of governance, international law lacks the capacity to grow. The Copenhagen Accord, which is regarded by some as an unmitigated disaster, while some argue that, although the Accord fails to establish the binding carbon emissions targets that were hoped for, it at least creates a new multi-polar order that engages the developed nations whose participation is vital to future progress. Politics and international law seems to have failed to live up to expectations. There are significant commonalities among the chthonic legal traditions that typify the world's many tribal societies. People are global citizens and tribal souls. Therefore, the onus is on the citizens to make up for the failed policies and programs.
Jennifer F. Klot
This chapter offers an alternative analysis of the political opportunity structures that were most significant in bringing about the UN Security Council Resolution 1325 (SCR 1325) on Women, Peace and Security. By contextualizing SCR 1325 in the evolving discourse on UN peace building and the responsibility to protect (R2P), it explains why key provisions have been both misinterpreted and underexplored. The chapter attributes the genesis of SCR 1325 to a cadre of feminist organizational entrepreneurs who brought their vision and allies into a new institutional discourse, replete with its own actors, institutions, policies, and processes. The chapter also identifies the important and under-recognized role of male “door openers,” who used their positions and access to advance SCR 1325’s feminist agenda. Ultimately, it argues that SCR 1325’s emancipatory potential rests with its ability to enable feminist transformative agendas, both within and outside the context of UN peace-building structures and processes.
Gary J. Bass
This article reviews the state of the field in three crucial issues about war crimes tribunals: victors' justice, outlawing war, and the trade-off between peace and justice. In all three, the tension between the partiality of politics and the impartiality of law is stark and enduring. Although international tribunals are often billed as simply the extension of the domestic rule of law, there is no set legitimate authority in place in international relations. Even the permanent International Criminal Court is brand new, and its permanence is hardly guaranteed. The question of who judges is particularly salient because of the weak consensus on underlying values in the international system. The ad hoc tribunals for the former Yugoslavia and Rwanda did not formally include aggression in their charters. The world is in the bizarre position of pursuing an international legal order that enshrines the key tenets of jus in bello, while largely ignoring jus ad bellum.