In association with the International Commission of Jurists

Recent Posts

28 Jun

[Isabel Feichtner is a professor of law and economics at Goethe Universität Frankfurt] This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. Robert Howse’s and Joanna Langille’s article on the Seal Products Dispute is a truly admirable piece of normative doctrinal scholarship. The authors do not hide their preferences with respect to animal welfare and the protection of seals in particular. Their propositions as to the interpretation of WTO law are, however, not merely guided by this specific policy preference. Instead their argumentation is supported by a larger vision of global governance and the proper balance between international trade law and domestic regulatory autonomy, all the while thoroughly grounded in the WTO’s own case law. Having been consistently inspired and convinced by the writings of Rob Howse on the WTO I am not the one to argue with the authors’ reconstruction of the trade regime that emphasizes the need for deference to domestic regulatory choices and that wishes (where possible) to limit the disciplines of trade law to prohibitions of discrimination. Thus, I will not offer a fundamental critique. Instead I will take up what intrigues me most in their article -- the notion of “non instrumental public morals justification” – and raise two questions: first whether the seals dispute is a suitable test case for such a justification given that the EU itself had to justify the trade restrictions in instrumental terms; and second whether public morals justifications -- even though non-instrumental -- should be submitted to some form of rationality test. The (Non-)Instrumentality of the EU Seal Products Ban For Regulation 1007/2009 to conform to EU law the Council of the European Union and the European Parliament had to argue that the seal products ban contained in this regulation was necessary for the functioning of the internal market. Since the EU treaties do not grant to the EU a competence to adopt a trade ban for the sole purpose of animal welfare protection, Council and Parliament based the ban on Art. 95 of the Treaty establishing the European Community (now Art. 114 Treaty on the Functioning of the European Union). For the same reason the trade ban on cat and dog fur in Regulation 1523/2007 was also based on Art. 95 TEC. This legal basis allows for “the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” As a consequence of this choice of legal basis the seals ban had to be justified in terms of its instrumentality for the functioning of the internal market. A convincing case had to be made that the (almost complete) ban on trade in seal products within the EU pursued the objective of the functioning of the internal market. As Howse and Langille have convincingly argued a measure may pursue multiple purposes. Indeed Art. 114 TFEU itself mandates the EU to pursue in its harmonization legislation a high level of health, safety, environmental and consumer protection. Whether the EU is competent, however, to pursue such aims in a non-instrumental fashion is open to debate. Taking a similar posture to the EU as Howse and Langille do vis-à-vis the WTO one may be inclined to argue that respect for member state diversity and value pluralism within the EU mandates a restrictive stance of the EU with respect to expressive legislation, signifying moral opprobrium.
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28 Jun

[Simon Lester is the President of WorldTradeLaw.net and a trade policy analyst at the Cato Institute.] This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. Over the past two decades, there has been an effort by many trade law academics and others to define the boundaries of international trade rules in a way that disciplines trade restrictions, while allowing sufficient policy space for governments to regulate in legitimate ways. Rob Howse has been at the forefront of this effort, having written numerous articles, on a variety of trade law topics, that address various aspects of these issues. In their YJIL article on the WTO Seal Products dispute, Rob and Joanna Langille continued this effort, by trying to address this problem in the context of a specific kind of measure, one that involves what they refer to as "expressions of intrinsic moral or spiritual beliefs". (In the case of the seal products ban at issue, it is "the community's ethical beliefs about the nature of 'cruelty' in the unacceptability of consumption behavior that is complicit with that cruelty.") They argue that WTO law should allow such measures, even if trade is restricted as a result. More generally, they articulate a vision of "pluralism" under the trade regime that "recognizes the importance of expressive, non-instrumental rationales for state decision-making". A specific focus of the piece is the distinction between "instrumental" and "non-instrumental" measures. The authors note that while a traditional means/ends analysis can be used to deal with trade concerns arising from instrumental measures, such as those intended to promote human health, this kind of analysis cannot simply be transposed to non-instrumental regulation, which expresses moral, spiritual or ethical beliefs. The means do not relate to the ends in the same way with such measures. One of their goals, then, is to ensure that non-instrumental regulation does not fall through the cracks of the usual approach to setting appropriate boundaries for the trade regime. If the typical means/ends analysis will not suffice, they say, it must be adjusted to deal with the special situation of non-instrumental regulation. In response to this point, it could be argued that a means/ends analysis is not always ideal even where instrumental measures are at issue. It evaluates the effectiveness of the measure more than its true purpose or trade impact. I don't mean to suggest that such a test is completely irrelevant for evaluating trade restrictions. Rather, I wonder whether other factors are perhaps more important and should be the focus.
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28 Jun

Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law. Joanna Langille is a 2011 graduate of New York University Law School.] This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. Our article examines...

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28 Jun

For lack of evidence, former Bosnian Serb leader Radovan Karadzic has been acquitted of one of two counts of genocide he faces at the ICTY at this mid-point in his trial. He faces 10 other charges, including the other genocide charge affiliated with the Srebrenica massacre, wherein 8,000 Muslim men and boys were killed (ICTY press release here). Turkey has sent a...

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27 Jun

I know that most readers of the blog are interested in international law, not immigration law, but Justice Scalia's concurrence/dissent in Monday's SB 1070 decision has something for everyone. Scalia takes the trope of formal sovereignty as among the states of the United States to its logical endpoint: As a sovereign, Arizona has the inherent power to ex­clude persons from its...

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27 Jun

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. Margaux J. Hall is a Consultant in the Justice Reform Practice Group of the World Bank's Legal Vice Presidency. She is based in Freetown, Sierra Leone. David C. Weiss is an Associate in the Antitrust and Competition practice group at Skadden, Arps, Slate, Meagher & Flom LLP in New York. All views expressed herein are the authors' own. We are grateful for the thoughtful contributions from Bonnie Docherty, Tyler Giannini, Robin Kundis Craig, Siobhan McInerney-Lankford, and JB Ruhl, scholars who have shaped academic discourse around climate change and human rights. We also would like to thank Matt Christiansen, who organized this symposium for YJIL. We’ve enjoyed receiving these thought-provoking reactions to our article and believe they warrant at least a brief response. As we conceded in our introduction to this symposium, there remain significant challenges in addressing global issues such as climate change through a human rights framework. Nevertheless, we continue to view human rights as useful and important in climate change adaptation discussions, as do the commentators in this forum. McInerney-Lankford writes, for example, that human rights have power in that they are backed by the force of law. While the legal standards for a particular right may be somewhat vague, governments may not engage in intransigence, retrogression, discrimination, or failure to meet certain minimum standards. Litigation can indeed vindicate individual rights claims, as experiences from South Africa and India have demonstrated. Beyond this, human rights law’s state actor requirement need not overly restrict climate change action. Governments themselves will play a large role in climate change adaptation as they receive a growing pot of funding from international donors. For example, in May, six multilateral banks agreed on a joint process to report their adaptation funding. As donors join together, human rights can provide a powerful means of ensuring government accountability and compliance with certain standards. Thus, responding to Ruhl’s concern that international institutions may be no “more effective than they have been in the human rights endeavor simply because the banner now reads climate change,” multilateral banks and others could exert pressure on governments to spend their sizeable adaptation funds wisely – human rights can provide an organizing principle for advocacy in this respect.
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27 Jun

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. [Siobhan McInerney-Lankford is a human rights lawyer and senior policy officer at the World Bank.] Human rights law can contribute to understanding climate change, particularly in terms of the social and human impacts of climate change. In Avoiding Adaptation Apartheid, Hall and Weiss consider how climate change affects the enjoyment of human rights and employ a legal frame of reference to address the complementary question of how human rights law can inform responses to climate change. By distinguishing how human rights might inform mitigation policies from how they could influence adaptation policies and by focusing on the latter, they get beyond the challenges of establishing causation (due to the aggregate causes and disparate impacts of climate change) and the absence of an established legal basis for what John Knox calls “diagonal environmental rights” between individuals or groups in one country against the government of another country. Instead they highlight the relevance of the ‘vertical dimension’ of human rights law as it governs the relationship between states and their citizens, irrespective of where responsibility for increased emissions should be assigned. A strength of this approach is its emphasis on existing legal obligations and the enhanced accountability contributed by human rights, since rights imply correlative duties or obligations. A number of additional perspectives are worth highlighting which relate to human rights as the subjects of public international law. As a formal legal matter, it is worth considering how one argues effectively for the applicability of human rights obligations to mitigation responses governed by international environmental law, given the increasingly fragmented nature of international law. One might invoke the importance of international policy coherence to argue for the general relevance of human rights obligations to climate change policy. One might further argue for interpretative reliance on human rights obligations in implementing environmental law obligations where both are binding on a particular government, as for instance where the State were party to both the ICESCR and the UNFCCC. Support could be drawn for this on the principle of systemic integration to argue that human rights law obligations are part of the relevant rules of international law applicable in relations between the parties, within the meaning Article 31 of the Vienna Convention on the Law of Treaties. This normative interplay could be characterized negatively or positively. In negative terms it could be cast as a responsibility to ensure that the interpretation of norms related to climate change not undermine the fulfillment of human rights obligations. From a more positive perspective, human rights obligations could be drawn upon to inform the design and implementation of goals set forth in climate agreements.
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27 Jun

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. [J.B. Ruhl is the David Daniels Allen Distinguished Chair in Law at Vanderbilt University Law School] In Avoiding Adaptation Apartheid, Margaux Hall and David Weiss assemble a compelling argument for viewing climate change adaptation on the international level as a human right. Of particular importance are their emphasis on the distinction between climate change mitigation (measures to reduce climate change) and adaptation (measures to respond to climate change) and their focus on the responsibilities of states, including leaders of developing nations, to provide equitable and effective adaptation measures within their capacity. For too long climate change policy at all scales has been dominated by a mitigation focus, leaving a widening adaptation deficit that threatens to put many vulnerable populations in harm’s way. Hall and Weiss join a growing chorus of policy makers and scholars calling for increased attention to the adaptation needs of a multitude of impoverished people who, owing to the paralysis in mitigation policy, face certain disruption of their communities and cultures. But Hall and Weiss go beyond the standard solutions of shifting money from the developed nations, which are most responsible for and best equipped to manage climate change, to the developing nations least responsible for climate change and poorly situated to withstand its harms. Rather, they also tackle the difficult topic of what to expect from leaders of those developing nations as they decide how to deploy adaptation resources. The human rights lens they use for defining, measuring, and enforcing those duties seems utterly appropriate. But I am left asking, is this anything exceptional for the law? Surely climate change adaptation presents immense and complex policy questions for subnational, national, and international institutions. This, however, does not necessarily mean climate change adaptation requires anything special of law, or will lead to profound transformation of legal doctrine. For example, in Climate Change Meets the Law of the Horse, Jim Salzman of Duke Law School and I recently examined the impact of climate change adaptation on domestic law in the United States. Using a scenario of climate change impacts drawn from a variety of scientific analyses, we asked which fields of law would likely feel the most stress and whether there would be an impetus for creation of a new distinct field devoted to climate change adaptation. When one plays out that question, many fields of law quickly drop out of the picture. For example, it is a hard case to make that climate change will present novel and complex questions for family law. The law of coastal property rights, by contrast, is more likely to need to evolve to the new circumstances of sea level rise. But as for a distinct substantive field of climate change adaptation law, we could think of no reason one would be demanded. On the other hand, the demand for equitable allocation of adaptation resources in the United State could very well lead to the formation of a distinct set procedures focused on ensuring that goal, much as environmental justice has done for environmental protection.
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27 Jun

As a second boat of refugees in less than a week sinks on its way from Indonesia to Australia's Christmas Island, Australia's Prime Minister Julia Gillard wants to revive an earlier plan to have refugees processed in Malaysia in exchange for the acceptance of genuine refugees. Syria's President Assad has claimed that his country is in a state of war. Notwithstanding the...

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27 Jun

In case you missed it, I want to call your attention to an excellent editorial on the ICC written by friend-of-OJ John Bellinger III.  Although John does not support US ratification of the Rome Statute, he argues that the ten-year history of the Court has done much to allay US concerns about it -- and that US opposition to the...

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26 Jun

This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below. [Robin Kundis Craig is a professor of law at the University of Utah S.J. Quinney College of Law] Margaux Hall and David Weiss do all of us a great service in continuing the dialogue regarding the relationship between human rights and climate change in their article, “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law.” In particular, their article rightfully points out that the human rights implications for climate change adaptation may be significantly different from those for climate change mitigation, in terms of substantive content, legal viability, and procedural feasibility. As I have argued in the natural resources and environmental law context, climate change adaptation is a different problem from climate change mitigation. By necessity, climate change mitigation—the steps toward reducing anthropogenic greenhouse gas emissions with the ultimate goals of first stabilizing and then reducing their atmospheric concentrations—requires international cooperation. It also requires sacrifice on the parts of some peoples and sectors, at least until some transition away from a carbon-based economy becomes technologically and economically possible. As a result of both of these realities, climate change mitigation efforts are plagued both by feet-dragging and free-riding, both of which complicate the very thorny issues of equity in implementing mitigation strategies around the globe. Nevertheless, as Hall and Weiss correctly note, implementing climate change adaptation strategies—that is, strategies for coping with the socio-ecological impacts of climate change—is a for more complex problem. For example, these strategies tend to be more focused on the local and regional scale, although at least some international coordination would be helpful for problems such as food and disaster aid and climate change refugees. Moreover, as Professor J.B. Ruhl at Vanderbilt has recently pointed out, climate change will produce winners as well as losers, complicating the potential willingness of all affected persons to embrace adaptation strategies, even in a small geographic location.
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