In association with the International Commission of Jurists

Author: Robert Howse

21 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here; his second, here and his third here.] Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy's recent book, What Makes Law Law? (I'll be racing down from Fordham University, where I'm talking about my own...

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20 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here and his second, here.] At International Economic Law and Policy Blog, where I'm a regular, I've been blogging for a while about the impasse in WTO Doha round negotiations and how to break through it. See here and here.  India has learned from the way developed countries operated in the previous Uruguay Round of negotiations, linking different issue areas or agreements, so for example rich nations could get developing countries to agree to TRIPs (intellectual property rules), on the basis that they had to do it to get something on agriculture, etc.  So, in this round, the Indians have insisted that implementing trade facilitation (mostly a developed country demand) depends on protection against WTO challenge for food security programs like India's food subsidies for its poor. With a bilateral deal between India and the US last week on food security, there is now the opportunity to move forward to complete the package negotiated in December 2013 at the Bali WTO Ministerial, and then, beyond that, to strike further deals that make the WTO as a negotiating forum relevant to the issues of today and tomorrow.  Reflecting the diversity of the WTO's membership, some of these accords will be plurilateral, not binding all Members, but rather in the manner of "coalitions of the willing", but still  (at least eventually) under the WTO umbrella, using its well-developed dispute settlement system and institutional framework.  Thus, another bilateral accord in recent weeks, between the US and China, will allow the Members involved to push forward with a new version of the plurilateral Information Technology Agreement (ITA).  At the same time, negotiations on liberalization of green goods have been happening in Geneva, another plurilateral initiative, where US leadership has been crucial (Canada's WTO Ambassador, Jonathan Fried, has also given these talks a big push). So, contrary to what the pessimists have been saying, the WTO is far from dead these days.  But some are claiming that the recent breakthrough is in fact trivial and disguises the virtual irrelevance of the current WTO agenda.  Financial Times journalist Alan Beattie, writing yesterday on one of the FT's blogs, claims that reaching agreement with India on food security in order to push forward on the Trade Facilitation Agreement is hardly a victory, at all but perhaps a defeat in disguise.  Part of  Beattie's argument is that the TFA is an unimportant accord, which has been blown up in significance because other elements of the Doha round agenda proved largely impossible to move forward on (such as genuine reform of rules on agriculture).   So what is the real story about trade facilitation?  Beattie is more wrong than right, and here's why. First of all, a little explanation of the jargon.  Trade facilitation is about improving customs administration, and the necessary infrastructure to move goods across borders.  Sounds boring, but the losses to otherwise efficient trade from these kinds of bottlenecks at the border, whether do to as corruption and incompetence, or just inadequate resources or out-of-date technology, are real.  One may question whether, however, the WTO, or indeed any set of legal rules, is up to tackling this kind of issue: it seems more a matter of institution-building, support for new technology and infrastructure, and rule of law/governance activities such as training of officials and redesign of domestic agencies.  In other words, if anything, the World Bank's and regional development banks' sort of thing, not the WTO's.  Thus, I myself have in the past expressed skepticism about how much the WTO can do in this area.  (An excellent guide to the TFA by Ole Miss law professor Antonia Eliason can be found here). Yet, as Ruti Teitel and I have argued in our essay "Beyond Compliance,"
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19 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here.] After a long period of relative neglect of such studies, there's a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries...

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18 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.] According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: "the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney." So let's take a hard look at the weapons the neocons have in their arsenal these days. The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don't have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention--Afghanistan, Iraq--can be explained by not enough American force being applied.  Consider Bill Kristol's approach to ISIS: "What's the harm in bombing them at least for a few weeks and seeing what happens?" This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol's remark also speaks volumes to the neocons' stance toward international law. Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,"Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton." Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons--he, at least, chose to risk his life in the war that he praised as "just and noble".  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President's plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: "we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security."   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek "victory" in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.
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02 Feb

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.] Thanks to Kevin Heller for taking to Opinio Juris the discussion I started on Prawfsblawg about the future of American law schools. I agree with Kevin entirely that there are excellent institutions of legal education in other countries, including but not limited to the ones...

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30 May

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Professor Alvaro Santos's Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean. To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available. In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD's work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.
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11 Apr

[Robert Howse is the Lloyd C. Nelson Professor of International Law at the New York University School of Law.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. The Article by Shaffer and Trachtman is a tour de force: it identifies and explains many of the most important interpretative choices that panels and the Appellate Body have made in adjudicating disputes under WTO law, and speculates on the implications for the WTO as an institution, its economic and political economy functions, and for the relation between international law and politics, both domestic and transnational. I assigned this article in one of the introductory classes for my advanced course in WTO law at NYU, because it canvassed so many of the issues that students need to think about when they are consider the WTO case law as a jurisprudence. One of the issues that the authors discuss, which intersects with my own scholarship about the WTO and about fragmentation in international law more generally, is the role of non-WTO international law in WTO dispute settlement. Here the authors place considerable emphasis on the EC-Biotech case, where the panel made a highly dubious interpretative choice to exclude non-WTO international law relevant to to the regulation of GMOs from its consideration of the meaning of the WTO norms at issue. The authors thus tend to the conclusion that non-WTO has been marginalized in WTO dispute settlement, with possibly serious consequences for the legitimacy of the system; as they note, on such a scenario, there is an effective assertion of the supremacy of WTO rules or other international law norms that may be applicable to the matter at hand. Can such a supremacy be sustained legitimately from the perspective of the international legal system as a whole? My sense is that the Appellate Body is cautiously distancing itself from the narrow approach in EC-Biotech. In EC-Aircraft, the Appellate Body, seemingly influenced by the ILC Working Group on Fragmentation Report, suggested that considerations of systemic integration in international law might suggest a fuller embrace of non-WTO international law in appropriate cases, even where not all WTO Members are parties to the non-WTO international agreement. In the China-AD/CVD case, the AB based its interpretation of an important concept in the WTO Subsides and Countervailing Measures Agreement (that of a "public body") almost entirely upon the ILC Articles on State Responsibility. I sense that the AB has returned the orientation of the jurisprudence to the greater openness to non-WTO international law that had been displayed much earlier in the case of Shrimp/Turtle, where the AB brought a number of non-WTO international legal instruments into its adjudication of that dispute, particular those concerned with biodiversity. A very shrewd observation of the authors is that, in a number of doctrinal areas, the AB has chosen approaches that entail judicial balancing, or case-by-case weighing of multiple factors or considerations, to "bright lines." They are right that such an interpretative choice tends to be very (self-) empowering of the judicial branch. It is also a way of managing political conflict or disagreement in a fashion that may help preserve the legitimacy of the judiciary, since "bright lines" can often appear to favor systematically one value or one constituency over another in an area of normative contestation (the authors discuss the now clearly rejected (Shrimp/Turtle) "bright line" that the unadopted Tuna/Dolphin panels invented on PPMs, which systematically excluded a whole range of activist environmental strategies from consistency with WTO law): here we should consider Cass Sunstein's thinking about "one case at a time."
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14 Mar

[Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law] When International Law Works is a wide-ranging work with many important and original claims and arguments. Particularly congenial is the approach that the real world effects of international law be examined not through narrow studies of rule "compliance" but in a manner that takes into...

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