A Response to Jean d’Aspremont by Brad Roth

by Melbourne Journal of International Law

Jean d’Aspremont’s supremely kind comments on my article require little response other than an expression of appreciation. Jean’s knowledge in this field is second to none, and the differences in our perceptions of these topics are minute. But it is, perhaps, worth clarifying my position on the recognition of coup regimes and the question of a democratic entitlement in international law.


There is no question that the international order has departed from the strict anti-interventionism that underlies what I have termed ‘the effective control doctrine’. Coups against ‘freely and fairly elected’ governments have, as Jean has demonstrated, systematically come to incur disfavor. What is unclear is whether it remains the exceptional case or is now the rule that this disfavor extends to denying a coup regime legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the sovereign entity that it purports to govern. The Haiti (1991–94) and Sierra Leone (1997–98) precedents were path-breaking but involved unusually egregious regime characteristics and have not been followed in cases of mere disrespect for election results.


Tellingly, Jean has conceded that once ‘authors of a coup d’etat … have gained effective power’, they become for legal purposes ’an organ of the state,’ and their subsequent breaches of international legal obligation ’are attributable to the state.’1 And indeed, if a coup regime, notwithstanding widespread disapprobation, acquires permanence, it becomes dysfunctional for the international order to relate to it in any other way.


Given the continuing heterogeneity of ruling arrangements, old and new, it seems anomalous that the international order should make sacrosanct a particular formula for establishing a government. Moreover, ‘free and fair elections’ achieve general acceptance as the arbiter of political conflict only where antecedent questions, both procedural and substantive, have been resolved. Where there is no agreement about what fates electoral outcomes should be permitted to determine, the stakes of electorainl competition can be intolerably high. In addition, elections often pose a choice among options as to which there is little sense of popular ‘ownership,’ and elected governments may frequently be seen to have vitiated their mandates by provocative or ineffective conduct. Coups and other unconstitutional disruptions cannot be blanketly characterized as anathemas to popular will.


This is not to say that the proliferation of free and fair electoral processes is not to be encouraged nor that recognition practice should regard bullets and ballots as equivalent. Nor do international norms stand still. The Côte d’Ivoire crisis (2010–11) furnishes a new instance of regime repudiation, albeit distinctive for (1) having already been the object of Chapter VII resolutions aimed at resolving a sectional civil war, and (2) having been the site of an externally brokered agreement calling both for elections organized in a specific manner and for the parties to abide by an internationally-backed body’s judgment on the electoral outcome. Whether this episode augurs the long awaited normative transformation or represents just another exceptional case remains to be seen.



1 Jean D’Aspremont, ‘Responsibility for Coups d’Etat in International Law’ (2010) 18 Tulane Journal of International & Comparative Law 451, 473.

A Response to Brad Roth by Jean d’Aspremont

by Melbourne Journal of International Law

[Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam]

Brad Roth’s timely and insightful article entitled ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ published in the Melbourne Journal of International Law deserves the greatest attention. Twelve years after his seminal Governmental Illegitimacy in International Law. Brad Roth shows that his knowledge and analysis of questions of governmental legitimacy and state creation remains unequaled. He remains a voice that still resonates with authority – and rightly so in the international academy. This article is just one more illustration thereof. Although I have occasionally taken different paths than those suggested by Brad, most of the time I have reached similar conclusions. On the whole, I find myself in agreement with the call for prudence that permeates his scholarship and, in particular, his rejection of the all-out and unbridled embrace of the so-called principle of democratic legitimacy promoted by the Manhattan School in the first half of the 1990s.

This article is no exception. In particular, I concur with Brad’s conclusion regarding the place of the effective control doctrine in situation of state creation and secessions. Indeed, Brad correctly thwarts the often naïve, in my view, legalism infusing the international legal scholarship pertaining to state creation and secession and rejects the tendency to elevate what scholars commonly but misleadingly present as the ‘statehood criteria’ into rules regulating state creation and secession. In that sense, he rightly backs away from what I have called elsewhere the ‘Montevideo Illusion’, whereby it is thought that states are necessarily created under and in accordance with international law. state creation and secession remains primarily a question of — as I used to distinguish them — external and internal effectivité, the former being directly determined by recognition and the latter being the result of the actual territorial control which the entity concerned can establish. Likewise, Brad rightly keeps at bay progressive interpretations of the principle of self-determination (see, eg, the oral statement of the only African country participating in the advisory procedure before the International Court of Justice pertaining to declaration of the unilateral declaration of independence in respect of Kosovo: http://www.icj-cij.org/docket/files/141/15738.pdf) as well as the contention that self-determination has grown into a principle that regulates secession. There is no doubt that self-determination has significantly impacted the creation of states in the second half of the 20th century. That legal principle bears upon factual developments which are the essence of the political project behind international law. It is however going one step too far to claim that the factual effect that self-determination can bear automatically elevates it into a legal rule governing statehood. This is why, as far as Brad’s treatment of state creation and secession is concerned, there is thus not much I would disagree with.

The conveners of this symposium would probably not relish having me concurring with all the points made by Brad. Legal blogging owes its raison d’être to, among other things, its provision of a platform for discussion (http://www.ejiltalk.org/in-defense-of-the-hazardous-tool-of-legal-blogging/). I shall accordingly seize this opportunity to spot the few issues with respect to which my views depart from those of Brad. While agreeing with most of his positions in terms of state creation and secession, I find myself slightly more uncomfortable with some of his conclusions pertaining to situations of coup d’etats. I entirely share his caution and his contention that we must resist the temptation of legalism and over-reading individual cases, for these situations are most of the time sui generis and the following reactions simply ad hoc. Likewise, I agree that the cases of Honduras and Madagascar can be the object of diverging interpretations. However, as I have argued elsewhere, and despite the fact that, in my view, coups d’etat can never be attributed to the states because authors of coups cannot be acting in the capacity of an organ of the state, one cannot turn a blind eye to the contemporary systematic practice whereby putschists almost always fail to secure recognition — unless they commit themselves to organize free and fair elections — and undergo a wide range of sanctions. Putschists most of the time fall short of being recognized and are subject to sanctions, but that does not necessarily mean that there is the ‘invisible hand of a rule’ behind it. It simply means that there are some well entrenched standards in practice and that free and fair elections have become one of the central yardsticks in terms of legitimacy of government (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265527). It is true — and this probably is the major divergence between Brad and I – that I have gone as far as to claim that not only conventional law (the ICCPR and regional conventions), but also customary law, now enshrine a very minimal requirement pertaining to the organization of free and fair elections. Yet, even if one rejects that idea, as Brad does, it seems difficult to ignore that the practice bespeaks a solid trend towards the non-recognition of putschists — and hence a systematic denial of legal standing and the capacity to speak and act on the behalf of the state by those that seize power by virtue of a coup.

This being said, irrespective of whether practices pertaining to coups d’etat are the manifestation of the existence of a customary rule, as I have just indicated, it does not necessarily need to be so. Making the claim that free and fair elections have become central standards in recognition of governments does not prejudge that this practice may currently be waning and that the commitment of states for procedural democracy after the Cold War may soon be superseded by other considerations (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729786). While disagreeing on the ambit of past and present practice, it may well be that in the future, Brad and I will eventually come to share a similar cold-eyed take on the matter.

Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine

by Melbourne Journal of International Law

[Brad Roth is an Associate Professor of Political Science and Law at Wayne State University]

The effective control doctrine that, in different forms, has governed the recognition of states and governments is unappealing at its core.  Based on the principle of non-interference in civil strife within established international borders, the doctrine’s essential logic is that, with regard to internal efforts to create new states by secession or to overthrow existing constitutional orders, the international rule of law reduces to respect for the outcomes of trials by ordeal.  Traditionally, international law has not established any pathway by which secession can be peacefully achieved without the consent of the original state, nor has it systematically predicated a governmental apparatus’s standing to exercise the state’s legal prerogatives on anything other than victory in an internal power struggle.

In these fundamental ways, international law has seemed to lack a ‘rule of law’ character.   Nonetheless, alternatives are elusive, and not merely because of realpolitik considerations.  Appeals to the idea of ‘popular’ rather than ‘state’ sovereignty miss the point that opposing sides in internal conflict typically claim this mantle.  The right of peoples to self-determination is associated with non-fragmentation as much as with independence; respect for majority rule presupposes an answer to the very question being contested — the ‘majority of whom?’ problem — and respect for minority rights presupposes straightforward resolutions to clashes, not only between legitimate majority and minority interests, but also between minorities and minorities-within-minorities, between territorially concentrated and dispersed minorities, and between ‘national’ and ‘non-autochthonous’ minorities.

What counts as a democratic outcome in any given instance is highly dependent on contested normative conceptions.  From one perspective, in conditions of extreme economic disparity and social stratification, liberal-democratic constitutional forms are consistent with a substantive political inequality that belies the ‘democratic’ imprimatur; in the face of concentrations of economic and social power, a concentration of political power may be necessary to change the game.  From another perspective, adherence to a particular constitutional formula may allow for demagoguery or deadlock to win the day at a critical historical moment, with potentially severe and lasting social costs.  Where such assertions are facially plausible and are embraced by substantial constituencies, the words ‘essentially within the domestic jurisdiction,’ expressing the principle of sovereign equality so central to the international legal order that we have lately known, seem apt.

That said, the existence of twilight does not refute the distinction between day and night.  There remains an underlying moral logic to the international legal order, and the plurality of interpretations, while substantial, is not unlimited.  A cross-cutting consensus in the international community is frequently achievable, if not about what popular sovereignty is, then about what it is not.  Where the outcome of a local trial by ordeal is widely perceived to be in blatant contradiction to the notion of the state as embodying the self-determination of the entirety of the territorial population, or to the notion of the government as an authentic representative (for the time being) of the political community that the state encompasses, international institutions may repudiate that outcome and champion an alternative solution.  That alternative solution, however, tends ineluctably to have an ad hoc character.

The full article can be accessed here.

A Response to Dianne Otto by Gina Heathcote

by Melbourne Journal of International Law

Can arguments for preemptive self defence under international law be regarded as a mirroring of feminist arguments for justified self-defence in cases of homicide by individuals who have experienced long-term domestic violence? This is one of the questions Dianne Otto raises in response to my MJIL article, ‘Feminist Reflections on the ‘End’ of the War on Terror’. In the article I argued that preemptive force, or what was known as the Bush Doctrine, mirrors provocation defences in western national legal structures. The core of my argument assumes that, as a consequence, the removal of preemptive force justifications would be beneficial to the integrity of the discipline just as provocation has increasingly been abolished or rejected by national legal structures.

To shift the domestic analogy from provocation to legal constructions of self-defence introduces a host of new feminist questions. Western states have often responded to and attempted to adapt feminist reasoning on the gendered nature of interpersonal self-defence claims to create legal justifications for domestic violence survivors who have killed their partners to ensure their own or their children’s long term security. If my domestic analogy is accepted as a useful tool to engage and explore the assumptions behind the discipline of international law, the self-defence analogy may lead to a requisite broadening of international self-defence to encompass preemptive self-defence in response to long term violence against a state by another actor.

In my article in the MJIL, however, I use the domestic analogy to explore conceptual analogies between Western, common law legal structures and international law rather than in a prescriptive manner. This approach is enlarged on in my forthcoming book, The Law on the Use of Force: a Feminist Analysis (Routledge, 2011) where I argue:

A prescriptive analogy assumes the correlation of domestic legal categories with international legal categories and, therefore, explains international legal justifications for violence by drawing upon domestic legal justifications for violence. In contrast, the conceptual analysis developed in this book does not assume the sameness of international and domestic legal structures instead, it seeks, to expose concepts developed in Western domestic legal orders that are assumed to exist in the international legal system. . . The conclusion drawn from this is not that the analogy between the two forms of justifications should be strengthened or that feminist solutions to domestic legal issues should be superimposed on to the international. Instead the feminist appraisal of the international law on the use of force, viewed through the lens of the domestic analogy, promotes a re-examination of the appropriateness of contemporary legal rules on the use of force.

In the book, I conclude that one of the flaws of international self-defence is the implicit personification of the state within constructions of the law on the use of force, particularly the imagery and expectations of legal self-defence under Article 51 of the UN Charter and customary international law. The consequential limitations contribute to the sexing and gendering of international law, where violence and law are both concepts that function through the projection and development of strong gender norms about what is rational, justified and legitimate. Our preconceptions about the ‘normal’ characteristics of international legal subjects (or any legal subject or in any legal structure) infiltrate our understanding of how law should or could work. Furthermore, this understanding of the international legal subject is not only gendered male but also envisages heteronormative spaces (that is, where not only are legal subjects imbued with male characteristics, they exist in opposition to other actors whose traits are feminised). I will be enlarging these thoughts on the impact of heteronormative assumptions in the law on the use of force at the upcoming Queer Perspectives on Law Workshop at SOAS on 13 May 2011 (see: http://www.soas.ac.uk/cceil/events/13may2011-queer-perspectives-on-law-workshop.html) .

If we open international law to examine our own assumptions, about the gendered characteristics of legal subjects as well as our heteronormative expectations of relationships between subjects (for example, the powerful state protects the weaker state, forcefully when necessary, and often without consent), we find a range of powerful tools to see the structures which humanity has built as law as normative stories representing only the beginning of what human thinking might imagine in the making and re-making of international law. In my MJIL article, I use Arendt’s powerful description of natality to begin to envisage where we might go next to better represent humanity in the international. To return then to Otto’s question about the parallels between domestic laws on self-defence, particularly cases where survivors of intimate partner violence have killed their abuser and seek justification, and international arguments for acts of preemptive force: hunting out the conceptual analogies should push us toward exposing the assumptions we bring to international law; assumptions that we must work toward moving beyond.

A Response to Gina Heathcote by Dianne Otto

by Melbourne Journal of International Law

[Dianne Otto is a Professor of Law at the University of Melbourne, where she directs the programme on International Human Rights Law]

Two of the challenging questions that Gina Heathcote asks in her wonderfully provocative article are: What is a ‘feminist’ approach to the regulation of the ‘use of force’ in international law? What light is thrown onto this question by reforms feminists have promoted in domestic criminal law whereby, in seeking the abolition of provocation as a (partial) defence to murder, they have sought to tighten rules that excuse pre-emptive use of deadly force?

Heathcote argues that feminist engagement with international law has circled around the first of these questions rather than confronting it. I agree. Even worse, as Heathcote goes on to explain, since 9/11, most feminist work relating to the use of force in international law has, directly or indirectly, lent support to the increasing number of justifications for the pre-emptive use of force that have emerged. To illustrate this unlikely alliance, she uses the example of feminist concern with women as the victims of armed conflict and terrorism, which has served to strengthen arguments for pre-emptive use of force in order to protect women, as in Afghanistan and Iraq. Feminist advocacy has thus helped to sustain the familiar gendered imaginaries of international law that support the belief that military force is fundamental to global security, rather than subjecting them to fundamental challenge. Heathcote proposes that feminists focus more on strengthening the prohibition of the use of force in international law, following the lead of those seeking to abolish provocation as a defence in domestic criminal law.

As creative and thought-provoking as Heathcote’s analogy with domestic law is, I would like to push it a step further. Feminists have not just sought to limit the availability of exculpatory defences to murder in domestic criminal law. They have also argued that the rules that justify killing in self-defence should be loosened, in order to exonerate women who respond pre-emptively with deadly force to anticipated domestic violence. Extending Heathcote’s analogy, this suggests there may be some instances in which feminists would endorse the pre-emptive use of force in international law. This could help to explain apparent feminist support for the idea that force could be used to rescue women from widespread or systematic sexual violence during armed conflict, as Security Council Resolutions 1820 and 1960 suggest. The extended analogy raises a host of further questions which feminists engaging with international law need to address. Are there situations in which feminists would support the pre-emptive use of force? How far might this support extend? To situations where men are facing widespread sexual violence during armed conflict? For ‘humanitarian’ purposes? To stop the accumulation of weapons of mass destruction? To fight terrorism? And does it matter who uses the force?


My suggested extension of Heathcote’s argument only reinforces her conclusion that feminists engaged in international law need to address questions that are raised by the rules on the use of force head-on. In addition to finding ways to strengthen prohibitions as she proposes, the example of self defence in domestic law attests to the importance of also examining the possibility that there may be circumstances in which feminists support the use of force. Recognizing this would, to begin with, disrupt the conventional wisdom that associates ‘women’ with ‘peace’, which Heathcote identifies as deeply embedded in the gendered hierarchies of international law. It would also challenge the feminist adage that armed force, and the militarism that accompanies it, is never good for women. Heathcote’s provocation made me wonder whether circling around these issues may, in some instances, end up being the most violent thing to do.

Feminist Reflections on the ‘End’ of the War on Terror

by Melbourne Journal of International Law

[Gina Heathcote is a Senior Teaching Fellow at the School of Oriental and African Studies]

In my 2010 article in the Melbourne Journal of International Law (‘MJIL’), I explore two issues within a larger discussion of the impact of the war on terror on feminist scholarship in the international arena. The first issue is the role of feminist approaches in contemporary international legal scholarship. This leads on to questions that need to be asked about what we can expect from feminist approaches to international law, what feminist approaches might add to contemporary issues on collective security and at what entry point feminist debates might be occurring. The second issue considered in my article, is the end of the war on terror, or at least the Bush administration’s approach to combating global terrorism, and the legacy of the noughties on our understanding of the law on the use of force. Even if we can only argue that the end of the Bush administration in the US resulted in a semantic conclusion to the war on terror, and no change in practice, it is important to review and acknowledge the legacy of this period. This leads us then toward questions about the shape of collective security in 2011. When these two sets of questions and issues are drawn together, as I have done in this article, a range of new and pertinent questions and debates about the position of international law today, and the assumptions international law continues to work within, become exposed.

Feminist approaches appear to have gained a permanent space in international law, yet outcomes remain marginalised. For example, sexual violence in armed conflict is regarded as a gendered issue and thus an important site for feminist progress within international law. Militaries are identifiably skewed toward male membership so gender disaggregated statistics are collected. Both these developments may be important, although it would be misleading to think their importance stems from feminist concerns alone. At the same time the central argument of pivotal feminists works on the sexed and gendered limitations of international law — notably Charlesworth and Chinkin’s Boundaries of International Law; Buss and Manji’s International Law: Modern Feminist Approaches and Anne Orford’s Reading Humanitarian Interventions — remain muted in terms of international legal outcomes, even if they continue to raise and lead academic scholarship and conversations, globally. In the area of collective security this is a largely overlooked concern. Yet feminist scholarship has much to say about the assumptions of international law, about the structural bias of the discipline and a need to shift beyond seeing feminist dialogues as wholly about the twin issues of combating sexual violence in armed conflict and female representation within military structures.

Through the use of a domestic analogy I have attempted to re-develop feminist knowledge to think through the basic concepts and legal models that we bring to feminist debates on collective security. That is, I have used feminist critiques of the relationship between law, gender and violence that have been developed within the national feminist arena as a tool to test, identify and measure the gendered assumptions that permeate our understandings of the international. The second method used is a law-as-a-narrative model. When law is identified as a narrative that produces and reflects gendered understandings of legal subjects and relationships, gendered concepts are connected across the range of social discourses. In taking these two feminist methods to an analysis of the war on terror, what is now described as the global war against terrorism, I have challenged the preemptive force argument as a deployment of a provocation type excuse for the use of force in the international sphere that is analogous to domestic provocation excuses within Western, common law structures. It is interesting to note that Sir Ian Brownlie came to a similar conclusion in 1961 arguing against any form of provocation excuse within the international legal structure.[1] When coupled with a feminist understanding of the limitations of provocation as an excuse or mitigation for killing within domestic legal structures, the limitations of the Bush Doctrine of preemptive force are difficult to overlook.

In examining law as a narrative, preemptive force arguments can also be seen to be embedded in wider social discourses that curtail rather than develop humanity, be it through the consequent social fears and civil restrictions or the necessary denial of the two way impact of force on both those who use force (whether that force be illegal, justified, excused, mitigated, authorised or legitimate) and those who experience the use of force within their community. Ultimately the joint interrogation of feminist scholarship and international legal understandings of the global war against terrorism, raises two final questions. Can international law afford to ignore the gendered assumptions deployed and reinforced in contemporary legal narratives on the use of force? And, when, if ever, would feminist approaches justify the use of force on the territory of another state? These are issues this symposium might further develop discussion on.


The full article may be accessed here.


[1] For discussion of alliance treaties see Sir Ian Brownlie, ‘The Use of Force in Self-defence’ (1961) 37 British Yearbook of International Law 183, 199.

A Response to Rolf H Weber by Douglas W Arner and Ross P Buckley

by Melbourne Journal of International Law

As a general matter, we agree with Professor Weber’s comments, especially in relation to development and climate change. While we have not in this article focused on developmental aspects of the global financial architecture, in fact, we both view this as the fundamental goal.[1] Development however is not a simple objective and no single set of solutions to the development challenge has emerged. In the global economic architecture today, developmental issues are addressed through the Millennium Development Goals (‘MDGs’), a huge range of multilateral, domestic and non-governmental organizations from the World Bank to UNCTAD to national aid agencies, the Grameen Bank and beyond, and most recently the G-20 Seoul Development Consensus, reflecting the experiences of successful developing countries and the report of the Commission on Growth.

In looking at related issues, we believe the MDGs and Seoul Development Consensus reflect an appropriate way forward for coordinating development across the global economic architecture. Nonetheless, we believe that the International Monetary Fund’s (‘IMF’) role in development should be limited, with its focus on financial matters and crisis resolution. Further, we argue that a financial transactions tax could have important benefits in supporting development as well as reducing financial crises and enhancing mechanisms available for addressing them. At the same time, climate change and related issues such as food security need to be given a much more central role. However, the mechanisms in this context are likely to be different yet again from those adopted in other contexts discussed in the article.

In the context of hardening international financial law, this is a topic which we have addressed separately.[2] In this context, we see a range of possible options from the soft law arrangements preceding the Asian Financial Crisis of 1997, to the hardened soft law arrangements of the Financial Stability Forum/Financial Sector Assessment Program (‘FSAP’) that followed and then to the G-20/Financial Stability Board (‘FSB’)/FSAP arrangements in the wake of the Global Financial Crisis and beyond.

In respect to the ‘beyond’ category, one option would be to incorporate regulation into the WTO framework, accessing its hard law negotiating and dispute resolution framework. However, financial development and stability is a different animal from trade in goods and we would argue that the mindset and legal framework in this context is inappropriate.

A second option would be a global financial regulator either a new organization or one formed through giving the IMF, Bank for International Settlements (‘BIS’) or FSB appropriate legal authority. This has a certain attraction and would mirror domestic arrangements (a central bank/lender of last resort, financial regulator and financial institution resolution regime). However, politically, we do not think the world is yet ready for this step perhaps the last crisis simply was not big enough! The European Union is pursuing this approach to some extent through the European Central Bank and European regulatory authorities. Even in that context, though, sovereignty continues to pose serious obstacles.

A third approach would be to follow the approach in the context of investment: an international dispute resolution authority. Once again, however, the contexts are sufficiently different that this may not actually address the core issues of externalities embedded in finance.

As a result, while hardening in some context may be most appropriate (perhaps through the FSB or BIS), we do not yet see this as a viable option politically but one which does have much to recommend it.

Douglas W Arner & Ross P Buckley



[1] See Ross Buckley and Douglas Arner, From Crisis to Crisis: The Global Financial System and Regulatory Failure (Kluwer, forthcoming 2011).
[2] See Douglas Arner and Micahel W Taylor, ’The Global Credit Crisis and the Financial Stability Board: Hardening the Soft Law of International Financial Regulation?’ (2009) 32 University of New South Wales Law Journal 488, 488–513.

A Response to Douglas W Arner and Ross P Buckley by Rolf H Weber

by Melbourne Journal of International Law

[Rolf H Weber is a Professor for Civil, Commercial and European Law at the University of Zurich Law School and a visiting Professor at the University of Hong Kong]

The contribution of Professor Douglas W Arner and Professor Ross P Buckley is an important piece to the lively debate about the (new) architecture of the global financial system. The exposé is very thoughtful and enlightening, giving a historical outline of the attempts of regulators to prevent financial crises, with special focus on architectural aspects to be derived from experiences made between 1944–98 and 1998–2008. Still, I would like to offer two observations related to often underestimated aspects which could widen the scope of discussions for further considerations and debates.

Firstly, the regulation of international trade within the WTO framework has shown that a ‘hard law’ approach encompasses substantial merits even if not much progress in the further liberalisation of trade rules has been made during the last decade. As correctly stated by Arner and Buckley (at 39), tensions between developed countries and developing countries (mainly the BRIC countries) have indeed increased. Notwithstanding this observation, however, it should not be overlooked that two ongoing advantages of the given WTO framework remain of importance: (i) The international trade regime being based on multilateral agreements (‘hard law’) can be enforced and incorporates a dispute resolution mechanism which puts substantial preventive pressure on countries inducing them to comply with the WTO rules. The respective incentives are not to be underestimated since even financial sanctions (compensation schemes) can be a consequence of non-compliance. This dispute resolution mechanism is quite unique in the international arena and should be taken as an example which could eventually also be applied in other segments of the economy, in particular in the financial markets. Obviously, such a move would require a ‘hardening’ of many ‘soft law’ rules governing financial markets. (ii) The importance of building stronger links between financial markets and international trade is also evidenced by the fact that the co-operation between international financial institutions (ie the IMF, World Bank, Bank of International Settlements) on the one hand and the WTO on the other hand has materially increased; the risk that their respective policies contradict each other, which was still eminent some 10 to 15 years ago, seems to have become relatively remote.

Secondly, as shortly stressed by Arner and Buckley (at 51), issues relating to development and climate change are inextricably linked to financial matters. Even if the Asian financial crisis (1998–99) was more a problem of sustainable growth than the most recent financial crisis (2007–08), the main international financial institutions (IMF, World Bank) should devote more attention to becoming effective lenders, thereby improving the economic positions of the developing countries. Finding financial means that would provide sufficient resources for achieving global access to financial and other markets can appear to be a daunting task. But leveraging and mobilizing the instruments at disposal requires a focused and strong international consensus that is not always present. Nevertheless, it is paramount to spur the current international debate since there is a need for increased financing resources supporting sustainable and environmentally sensitive growth that can only be met with more engaged international cooperation in this field.

Redesigning the Architecture of the International Financial System

by Melbourne Journal of International Law

[Douglas P Arner is Director of the Asian Institute of International Financial Law, Director of the Duke–HKU Asia–America Institute in Transnational Law and a Professor of Law at the University of Hong Kong. Ross P Buckley is a Professor of International Finance Law at the University of New South Wales and a Fellow of the Asian Institute of International Financial Law]

During the great period of globalisation before the First World War, the international economy was based on global trade and global finance with monetary policy largely fixed under the gold standard. After the Second World War, a new international system was designed based upon global trade, fixed exchange rates and essentially domestic finance. This system did not include global financial regulation as finance was to be principally national. Starting in the 1960s however, capital markets began to globalise and in the early 1970s the fixed exchange rate system unravelled. The consequences have been a return to a level of financial and monetary instability not seen since the period following the First World War. The most dramatic example to date of this instability is the global financial crisis of 2007–10 (the GFC).

In our 2010 article in the Melbourne Journal of International Law, we analyse the responses to the GFC of the G20 group of nations, commencing in November 2008, followed by further meetings and measures in April and September 2009 and June 2010. Our assessment in broad terms is that the G20 acted effectively in the early stages of the crisis, and has lost momentum as the imminence of the threat to the global financial system has receded.

We argue there is a fundamental need to redesign the architecture of today’s global financial system to meet the requirements of this new reality. We explore possible new mechanisms and the changes to existing mechanisms that could be introduced to address economic coordination, macroeconomic and monetary management, development, and financial crisis prevention and resolution. In particular, we explore the potential for systemic measures such as bank levies, financial activities taxes, financial transaction taxes, and a sovereign bankruptcy regime.

The full article can be accessed here.

Melbourne Journal of International Law, Vol. 11-2: Opinio Juris Online Symposium

by Melbourne Journal of International Law

The Melbourne Journal of International Law is delighted to be continuing our partnership with Opinio Juris. This week will feature three articles from our most recent issue. The full issue is available for download here.

On Monday, Douglas Arner and Ross Buckley will discuss their article ‘Redesigning the Architecture of the Global Financial System’. Examining the history of global financial governance from 1944–2010, Arner and Buckley argue that there is a fundamental need to redesign the international financial system to better handle financial and monetary instability in a globalised world, and examine a variety of reform options with respect to economic coordination, macroeconomic and monetary management, financial crisis prevention and resolution, and trade and sustainable development. Rolf Weber, Professor of Law at the University of Zurich, will respond.

On Tuesday, Gina Heathcote will discuss her article ‘Feminist Reflections on the “End” of the War on Terror’. Drawing an intriguing analogy between the justifications of violence in the international law on the use of force and in the domestic criminal law defences of provocation, Heathcote considers what a feminist response to the legacy of the ‘War on Terror’ might involve. Dianne Otto, Professor of Law at the University of Melbourne, will respond.

Finally, on Wednesday, our discussion will centre around Brad Roth’s article ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’. Roth examines the question of when de facto exercises of governmental authority after secessions and coups are given legal status in international law, evaluating alternatives to the traditional emphasis on ‘effective control’ in doctrines of statehood. Jean D’Aspremont, Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam, will respond.

We hope that you enjoy participating in the upcoming discussion. Many thanks to Kevin Heller and the team at Opinio Juris for hosting us over the coming week, and to the 2010 Editors, Tim Farhall, Christopher Hibbard, and Mary Quinn for their work in producing the issue.

Information on our submissions process, publication policy and past issues can be accessed here. If you would like any further information about the Journal, please contact the Editors at law-mjil [at] unimelb [dot] edu [dot] au.

Sam Naparstek, Tiong Tjin Saw, and Suzanne Zhou

2011 Editors

Patrick McGlynn

2011 Assistant Editor