International courts make gradually larger parts of international law, especially in the fields of trade and foreign investment. They strike sensitive balances between competing public policy objectives, take a multitude of politically laden decisions, and increasingly impinge on the room of manoeuvre of domestic regulators. In this paper I suggest that rather diffuse legitimacy debates about the wisdom of their decisions are best understood as arguments about the proper balance of institutions in making international law. How courts should decide is routinely a question of who should decide. My contribution aims at probing the potential of a global separation of powers doctrine to inform those decisions and, in turn, to guide the making of international law in the interplay between international courts and political processes on different levels of governance.

I will pursue this programme in three steps: First, I illustrate the phenomenon of international judicial lawmaking with exemplary reference to the fields of trade and foreign investment. More specifically, the WTO Appellate Body—a court in all but name—has recently shaped the obligations for members when they adopt ‘technical regulations’ (Appellate Body 2012a-c). While it recognized—for the first time explicitly so—a member’s ‘right to regulate’, it continued on a path that emboldens international rules impinging on this right. A continuous stream of arbitral tribunals for investment disputes has likewise weaved a tight web of obligations that touches on domestic regulatory autonomy (e.g. ICSID 2008; UNCITRAL 2008; SCC 2012).

Second, I understand international judicial lawmaking as an exercise of international public authority (von Bogdandy & Venzke 2012) and now break new ground by embracing the idea that, under liberal-democratic premises, any authority needs to be limited and legitimized through a ‘correct’ separation of powers. Ages of hard-fought political battle have entrenched the separation of powers as a core idea at the domestic level. But it is still elusive when it comes to the exercise of international public authority.

Reframing diffuse debates about the legitimacy of trade and investment regulation in terms of the separation of powers has immense potential in clarifying and tackling the core problem: balancing institutions correctly.

The third and final step then probes the public law doctrine of a separation of powers in further detail for its potential to offer normative guidance on how to balance institutions and how to operationalize such a balance in legal practice. Scholarship on the “new separation of powers” (e.g. Ackermann 2000, 2010) suggests a basically triangular framework, which emphasizes democratic participation, functional specialization, and rights protection. I will enrich and attune such a framework to the international context and ultimately unfold general directions as well as concrete examples for adjudication in trade and investment law.



References:

Ackerman, Bruce (2000), ‘The New Separation of Powers’, 113 Harvard Law Review 633-725.

——(2010), ‘Good-bye Montesquieu’, in Susan Rose-Ackerman and Peter L. Lindseth (eds.), Comparative Administrative Law, Edward Elgar.

Appellate Body (2012a), United States—Measures Affecting the Production and Sale of Clove Cigarettes, DS406/AB/R, adopted 24 April 2012.

—— (2012b), United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, DS381/AB/R, adopted 13 June 2012.

—— (2012c), United States—Certain Country of Origin Labelling (COOL) Requirements, DS384/AB/R, adopted 23 July 2012.

Bogdandy, Armin von and Ingo Venzke (2012), ‘In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification’, 23 European Journal of International Law 7-41.

ICISD (2008), Biwater Gauff v. Tanzania, Case No. ARB/05/22, Award, 24 July 2008.

SCC (2012), Renta 4 S.V.S.A et al. v. The Russian Federation, SCC No. 24/2007, Award, 20 July 2012.

UNCITRAL (2008), National Grid plc v. The Argentine Republic, Award, 3 November 2008.

The ITU has developed powers to define time and to allocate satellite positions in space. How has an organisation set up to facilitate international telegraphy acquired these powers? Does a system of self-determined expansion of powers encourage competitive acquisition of competences? Is the institutional outcome for development of law significantly different from that achieved by multilateral diplomacy in the nineteenth and early twentieth centuries?

Modern international attention to time developed from the 1884 Washington Conference which decided on a number of standards, including a common zero of longitude and a standard of time-reckoning based on the Greenwich Meridian. Various international bodies, both of a public and private law character, have since then participated in setting standards for measuring time. The ITU became the lead international organisation covering broadcasting. It set standards for communicating radio times signals. Introduction of atomic clocks and irregularities in the rotation of the earth have led to divergence between "atomic" time and time related to the sun, and hence to the need for addition of occasional leap seconds in Universal Coordinated Time. The current proposal in the ITU to stop including leap seconds has potential significance far beyond broadcasting time signals.

International law has adopted a firm rule against national appropriation of space while encouraging its exploration and use. Claims by equatorial states to control the geostationary orbit and the demand for slots there for satellites were followed by the ITU allocating slots. It does so by using its powers to allocate frequencies to avoid harmful interference by transmitters. By linking specified frequencies with particular positions in the geostationary orbit and distributing these positions among members, the ITU has achieved a controlling role over locations in the geostationary orbit.

These examples both show how the absence of any system for allocating competences among organizations may allow for extensions of power which, though quite legitimate, have implications beyond the functions of the organisation concerned. Nevertheless an institutional structure ensures greater opportunities for wider participation than the vagaries of multilateral diplomacy of earlier centuries.

Why are the organizations which Timothy Geithner has called the “four pillars” of international economic governance (the IMF, the WTO, the World Bank and the FSB) designed the way they are? Although much of their institutional design – issues like voting, membership, mandate, and funding – can be traced back to the history of the organization and the circumstances in which states established it, the institutional setup of each organization should ideally correspond with the type of public good it seeks to provide. Formal organizations like the World Trade Organization (WTO) are treaty-based, requiring strict conditions for membership and a high degree of legal rules and enforcement. They were also established to carry out a specific function, such as balance of payment issues for the International Monetary Fund (IMF). Organizations such as the Financial Stability Board (FSB) are far less formal, and are concerned with monitoring, advising, and coordination of regulatory efforts. In some cases the roles of these organizations have expanded into new areas, or they have had functions replaced by other international bodies, especially in the wake of events such as the 1997 and 2008 financial crises. This paper seeks to understand how the design of these institutions is influenced not only by the states that established them, but also by the overarching goals the organization seeks to achieve, and its place within the broader framework of international economic governance.

The paper begins by comparing the institutional design of the FSB, IMF, World Bank and the WTO. It compares the organizations’ legal basis, membership, organs, decision-making processes, and management, as well as the methods by which they develop and enforce rules for the global economy. The paper then examines how these very different institutional setups relate to the goals of each organization. How has the design and function of these organizations changed over time, and to what extent has this change been due to the changing role of the organization, especially in light of events such as the 1997 and 2008 financial crises? Particular emphasis is given to the level of formality with which these organizations operate – when does the organization require strict rules regarding funding, voting, and membership, and when are more informal processes more appropriate? Finally, the paper seeks to understand to what extent these organizations, despite their differences in terms of mandate, structure, and methods are able to work together effectively and develop policies that are coherent and mutually consistent. An understanding of these dynamics will be useful in further discussions about how these organizations might be designed and structured better in order to address the challenges facing the global economy

Why are the organizations which Timothy Geithner has called the “four pillars” of international economic governance (the IMF, the WTO, the World Bank and the FSB) designed the way they are? Although much of their institutional design – issues like voting, membership, mandate, and funding – can be traced back to the history of the organization and the circumstances in which states established it, the institutional setup of each organization should ideally correspond with the type of public good it seeks to provide. Formal organizations like the World Trade Organization (WTO) are treaty-based, requiring strict conditions for membership and a high degree of legal rules and enforcement. They were also established to carry out a specific function, such as balance of payment issues for the International Monetary Fund (IMF). Organizations such as the Financial Stability Board (FSB) are far less formal, and are concerned with monitoring, advising, and coordination of regulatory efforts. In some cases the roles of these organizations have expanded into new areas, or they have had functions replaced by other international bodies, especially in the wake of events such as the 1997 and 2008 financial crises. This paper seeks to understand how the design of these institutions is influenced not only by the states that established them, but also by the overarching goals the organization seeks to achieve, and its place within the broader framework of international economic governance.

The paper begins by comparing the institutional design of the FSB, IMF, World Bank and the WTO. It compares the organizations’ legal basis, membership, organs, decision-making processes, and management, as well as the methods by which they develop and enforce rules for the global economy. The paper then examines how these very different institutional setups relate to the goals of each organization. How has the design and function of these organizations changed over time, and to what extent has this change been due to the changing role of the organization, especially in light of events such as the 1997 and 2008 financial crises? Particular emphasis is given to the level of formality with which these organizations operate – when does the organization require strict rules regarding funding, voting, and membership, and when are more informal processes more appropriate? Finally, the paper seeks to understand to what extent these organizations, despite their differences in terms of mandate, structure, and methods are able to work together effectively and develop policies that are coherent and mutually consistent. An understanding of these dynamics will be useful in further discussions about how these organizations might be designed and structured better in order to address the challenges facing the global economy

In absence of – and partly subsidiary to – specific provisions of international treaty law, general principles deriving from “established custom” are recognised as a protecting complementary umbrella for civilians as well as combatants in armed conflicts. The aim of this paper is to analyse the authoritative act of identifying such “custom” in IHL, understood as an act of global governance by focusing on the role of the ICRC as one of the key players within this shaping process. The potential impact and practical importance of the process is manifest, even though its normative framework has not yet been deeply analysed.

Material point of reference will be the 2005 ICRC Study on customary international humanitarian law and its follow-ups in recent years. With its communicated intention to make a “photograph” of existing, unwritten customary IHL, the study represents an authoritative approach to define “custom”. The proposed paper intentionally circumvents the pros and cons of such an undertaking. Instead, it focusses on questions which have not been analysed thoroughly until now:

a) the institutional dimension of the ICRC as a paradoxical non-state-actor with state-like legislative patterns

and

b) the process of distilling rules out of state practice and opinio juris as an inherent creative act of norm-shaping.

Thus this paper reflects for the branch of IHL recent developments in international law setting, as the act of governance is not monopolised by classical subjects of international law anymore.

In absence of – and partly subsidiary to – specific provisions of international treaty law, general principles deriving from “established custom” are recognised as a protecting complementary umbrella for civilians as well as combatants in armed conflicts. The aim of this paper is to analyse the authoritative act of identifying such “custom” in IHL, understood as an act of global governance by focusing on the role of the ICRC as one of the key players within this shaping process. The potential impact and practical importance of the process is manifest, even though its normative framework has not yet been deeply analysed.

Material point of reference will be the 2005 ICRC Study on customary international humanitarian law and its follow-ups in recent years. With its communicated intention to make a “photograph” of existing, unwritten customary IHL, the study represents an authoritative approach to define “custom”. The proposed paper intentionally circumvents the pros and cons of such an undertaking. Instead, it focusses on questions which have not been analysed thoroughly until now:

a) the institutional dimension of the ICRC as a paradoxical non-state-actor with state-like legislative patterns

and

b) the process of distilling rules out of state practice and opinio juris as an inherent creative act of norm-shaping.

Thus this paper reflects for the branch of IHL recent developments in international law setting, as the act of governance is not monopolised by classical subjects of international law anymore.

The nature and form of collective security is changing: Expert security discourses and institutional practices are combining into new a technology of governance that departs from the traditional rule-sanction model that can be characterized as using legal norms in a repressive way. Over the last decade, the United Nations Security Council has used law in conjunction with a disciplinary mode of power, in the Foucauldian sense, that is more pervasive and sophisticated than traditional (repressive) Chapter VII measures of economic sanctions and military intervention. This has involved a change in the role law plays in peace and security enforcement: While in extremis they may justify the imposition of a sanction, legal norms also define ‘normal’ or acceptable conduct. The UNSC’s use of sub-committees to monitor implementation of its resolutions is an example of this phenomenon.

The UNSC’s move from repression to discipline in regulating states’ conduct in the field of security responds to changing perceptions of what constitutes a threat to international peace and security. The paradigm threat has changed from the image of the aggressive state to that of the ‘threat without boundaries’ (A More Secure World, 2004). Threats without boundaries include international terrorism, nuclear proliferation, poverty, infectious disease and environmental disaster. While the UNSC has recognized these as ‘challenges’, only international terrorism and nuclear proliferation have been recognized as ‘threats’ under Article 39 of the Charter.

Article 39 is the doorway to Chapter VII measures to maintain and restore international peace and security. Where threats without boundaries are concerned, the boundlessness of the threat deprives traditional repressive measures of a defined target. In developing new tools to counter such threats, the UNSC has shifted focus from the threat itself, to the conditions in which it thrives: Porous borders, ill-equipped criminal justice systems, poorly regulated financial systems, lack of communication between law enforcement agencies and so on. Specifically, the UNSC has begun to govern the governors; not by acting as a world government, but by adopting disciplinary techniques of surveillance and correction to normalize states.

The model on which states are being normalized is dictated by the efficacy of the collective security system: Detailed aspects of nation-states’ domestic spheres and external relations are being modelled in accordance with the requisites of the UNSC’s primary function of maintaining and restoring international peace and security. While it is not novel to think of states as the agents of collective security, new security threats require new agents of security. Although there are positive aspects to these developments, such as exporting developed states’ know-how in criminal justice, financial regulation and border control to developing states, there are also negative aspects. In particular, the normalization of UN member states makes possible a division between normal and abnormal states. Abnormal states are already recognized by international lawyers in the form of ‘failed states’, ‘weak states’ and ‘rogue states’; disciplinary normalization entrenches and rationalizes these categories and, thereby, provides a means of justifying the departure from the Article 2(1) principle of respect for sovereign equality.

On 10 November 2008, the first maritime operation of the European Union was launched (EUNAVFOR Operation Atalanta) pursuant to the Council Joint Action 2008/851. Its mission was set out in article 1 as follows: ‘The European Union (EU) shall conduct a military operation in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council (UNSC), in a manner consistent with action permitted with respect to piracy under Article 100 et seq. of the United Nations Convention on the Law of the Sea…’. While Operation Atlanta was scheduled only for a year, its mandate has been consecutively renewed until December 2014.

Regardless of whether the Operation has been successful, it is argued that this increasing presence of the EU on the international plane, in casu in the maritime domain, poses several legal questions. First and foremost, is the Union bound by the totality of the rules of the law of the sea, including the UNCLOS? While the EU is party to UNCLOS, article 4 (3) of Annex XI of UNCLOS provides that ‘an international organization [EU] shall exercise the rights and perform the obligations […] on matters relating to which competence has been transferred to it by those member States. The EU Member States never transferred to the Union competences in respect of piracy jure gentium. It is also disputed whether these rules apply as a matter of customary international law, to the extent that they set out rights and obligations only upon flag States.

Addressing these questions is necessary for the establishment of the responsibility of the EU for any wrongful conduct in the context of Operation Atalanta. In addition to the existence of a primary obligation of the EU, the conduct amounting to the breach of the latter obligation should be attributed to the organisation itself and not to a Member State; otherwise, the responsibility may shift to this State.

Similar questions arise also in cases of transfer of suspected pirates to third States, such as Kenya or Seychelles, pursuant to bilateral agreements signed by the EU. Who bears responsibility for a violation of human rights law? Interestingly, on 11 November 2011, the administrative court of Cologne ruled that Germany and not the EU had violated the prohibition of torture, inhuman and degrading treatment by transferring suspected pirates to Kenya pursuant to the EU-Kenya agreement.

The paper argues that Operation Atalanta has various aspects, which call for different assessment as far as the applicable rules of international law or the ostensible responsibility are concerned. It is submitted that, at least on the high seas, the responsibility should rest with the flag States rather than with the EU; however, such conclusions are not lightly to be drawn and they certainly merit discussion.

This paper will discuss jurisdiction and cooperation problems arising from SC referrals to the ICC as reflected in the practice of the Darfur and Libya situations. It is maintained that the overall legal uncertainty resulting from the UNSC-ICC antagonism might foster decentralized tendencies expressed as refusal to cooperate with the Court.

The discussion begins with the multilayered tension between the UNSC and ICC regarding the latter’s jurisdiction. The paper critically outlines the basic features of the referral mechanism as an attempt to counter primordial objections to international criminal proceedings, namely sovereignty and the principle of legality. It attempts to grasp in legal terms what is the legal basis for the exercise of jurisdiction in situations of UNSC referrals to the ICC. It is argued that, in principle, no delegation of power from the UNSC to the ICC is necessary or, arguably, possible and thus the exercise of jurisdiction in such cases could be construed as based on the universality principle. The paper then critically assesses on two levels the legal problems raised by the Security Council’s decision in referral resolutions to reserve for the sending state exclusive jurisdiction over certain persons involved in authorized operations. First, it discusses the UNSC-ICC relationship in institutional terms and assesses the effects that the decision purports to have on the Court’s jurisdiction. Secondly, it examines the legality of the decision in the context of the general debate about the legal constraints on UNSC action. It is argued that while the latter issue might only play a marginal role with regard to the Court’s jurisdiction, it could potentially compromise the prospects of cooperation of individual states.

The next parts attempt to outline the perplexities of the ICC cooperation regime in cases of UNSC referrals and to address potential legal pitfalls informed by the practical experience of the two referrals. The problems arising from UNSC practice and the implications of general international law – especially customary or treaty obligations to prosecute international crimes and the law on immunities of state officials – are addressed in order to establish the source and content of obligations to cooperate with the Court, in particular with respect to arrest and surrender. The paper then turns to the current reactions of the African Union and attempts to conceptualise and assess them in legal terms. It examines the arguments that Sudan or Libya and states both parties to the RSICC and members of the AU might put forward in order to refuse cooperation, building upon the inconsistencies discussed in the preceding parts. The first relevant question is whether the alleged excesses of power by the UNSC and the ICC could be construed as rendering their acts invalid and without legal effect. The second question is whether the same acts could be construed as violations of international law entitling states to take countermeasures against the UNSC and the ICC respectively. It is concluded that even though the legality of those reactions is in the event contestable, their practical consequences are noticeable.

One of the most visible ways that an international organisation can demonstrate its aspirations and values is through its membership decisions. In recent years, a number of controversial admission and exclusion decisions have been made by international organisations, including the suspension of Mali from the African Union and La Francophonie, the admission of Palestine to UNESCO and the decision to grant it ‘observer state’ status in the UN, the suspension of Syria from the League of Arab States, Honduras’ suspension from and readmission to the Organization of American States, and the suspension of Fiji from the Commonwealth and the Pacific Islands Forum. In many such decisions, the interpretation of the constituent instrument of the organisation is (or should be) an important factor.

In 2011 the ICJ gave judgment in Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v Greece) – a case which dealt with Greece’s obligation not to object to the admission of The Former Yugoslav Republic of Macedonia to various international organisations pursuant to a 1995 agreement. In his dissenting opinion, Judge ad hoc Roucounas stated that, in determining the obligations of the parties, the practice ‘within’ international organisations rather than the practice ‘of’ international organisations was most relevant. In stating this preference, Judge Roucounas was entering the debate on the most appropriate method of interpreting the constituent instruments of international organisations. The ICJ has considered the interpretation of such treaties on a number of occasions, giving weight to the ‘natural and ordinary meaning’ of textual provisions in the context in which they occur (eg Second Admissions Case). The Court has also referred to the need to consider the organisation’s purposes, the intention of the parties, the organisation’s subsequent practice, and the principle of effectiveness in a number of cases. However, not all elements are considered of equal value and, in particular, doubts remains as to the relevance and value of the practice of the organs of an organisation or its members.

The purpose of this paper is to examine whether any particular principles of treaty interpretation have been given precedence in recent membership decisions and the impact of these decisions on the practice of interpreting the constituent instruments of international organisations.

Muddling through might be one way to describe the present state of international environmental litigation. The fragmented character of international environmental law results in significant jurisdictional problems whatever forum is chosen, but the solutions are far from obvious. When it comes to evidence and proof all the systems examined here accept that environmental cases are to some degree special, but there is no consensus on how to handle them. Even public interest environmental litigation, a widely accepted concept in other legal systems, becomes more questionable when replicated in international law, where alternative forms of dispute resolution are available. Is the answer to create a specialist international environmental court? The idea receives little support in academic writing, and appeals only to activists. Despite the problems examined here, the existing structure of international courts has much to commend it. Rather than indulge in radical reform, it seems better to identify more modest changes that would make the present ad hoc system a better vehicle for the settlement of environmental disputes

International arbitration is often central to complex peace processes, particularly where conflict resolution requires delimitation of land boundaries. Yet while arbitral proceedings involve a limited set of parties and issues, a peace process typically has an undefined scope and implicates all sorts of stakeholders. Arbitrations may resolve the legal dispute between formal (strategic) parties, but can incentivise violent spoiler activity by local (tactical) players. Tribunals cannot merely rely on parties’ original consent to dispute settlement in the arbitration agreement; durable conflict resolution requires that arbitral tribunals sustain both strategic and tactical consent prior to, during and after the proceedings.

This paper examines how arbitral tribunals manipulate international legal rules – both substantive and procedural – to manage and maintain the consent of parties to peace processes. The paper departs from the premise that consent is endogenous; rather than being external to the process, procedural and substantive elements of international dispute resolution affect who consents to what, when consent is given, and whether consent is genuine or disingenuous. Different stages of a peace process require different levels of consent. Once granted, consent can wax and wane, it can be delivered under duress, and it can be withdrawn as fast as it is given.

To better understand the consent management challenges faced by international arbitral tribunals, this paper disentangles two dimensions of consent: who should consent to what. To examine whose consent is required, the paper applies principles from UN peacekeeping doctrine to distinguish between so-called strategic and tactical players. To examine to what parties need to consent for peace to succeed, the paper considers recent dispute settlement literature on relational contract theory to distinguish discrete transactions from relational contracts in peace processes.

Building on these insights, the paper develops a consent management framework that visualises consent management dynamics in peace processes. The paper applies this framework to analyse and compare how arbitral tribunals have managed consent in three recent cases: the Brcko arbitration, relating to an autonomous territorial unit in Bosnia and Herzegovina; the Eritrea-Ethiopia boundary conflict; and the Abyei arbitration in the former Sudan. These cases demonstrate the extent to which arbitral tribunals adapt procedural and substantive rules of international law to manage consent of strategic and tactical players. Based on a comparative analysis, the paper draws conclusions on how the exigencies of durable dispute resolution condition the consent management strategies of international arbitral institutions involved in complex peace processes.

* S Dawkins: Programme Officer (Governance and Peacebuilding) at Conflict Dynamics International. Sophia has worked on capacity building programmes in the Abyei area of Sudan and holds degrees from Oxford University and the Fletcher School, Tufts University.

† B Smit Duijzentkunst: PhD Candidate in Law and WM Tapp Scholar at Gonville and Caius College, University of Cambridge. Prior to coming to Cambridge, Bart served as an Associate Legal Officer at the Codification Division of the United Nations Office of Legal Affairs in New York.

International arbitration is often central to complex peace processes, particularly where conflict resolution requires delimitation of land boundaries. Yet while arbitral proceedings involve a limited set of parties and issues, a peace process typically has an undefined scope and implicates all sorts of stakeholders. Arbitrations may resolve the legal dispute between formal (strategic) parties, but can incentivise violent spoiler activity by local (tactical) players. Tribunals cannot merely rely on parties’ original consent to dispute settlement in the arbitration agreement; durable conflict resolution requires that arbitral tribunals sustain both strategic and tactical consent prior to, during and after the proceedings.

This paper examines how arbitral tribunals manipulate international legal rules – both substantive and procedural – to manage and maintain the consent of parties to peace processes. The paper departs from the premise that consent is endogenous; rather than being external to the process, procedural and substantive elements of international dispute resolution affect who consents to what, when consent is given, and whether consent is genuine or disingenuous. Different stages of a peace process require different levels of consent. Once granted, consent can wax and wane, it can be delivered under duress, and it can be withdrawn as fast as it is given.

To better understand the consent management challenges faced by international arbitral tribunals, this paper disentangles two dimensions of consent: who should consent to what. To examine whose consent is required, the paper applies principles from UN peacekeeping doctrine to distinguish between so-called strategic and tactical players. To examine to what parties need to consent for peace to succeed, the paper considers recent dispute settlement literature on relational contract theory to distinguish discrete transactions from relational contracts in peace processes.

Building on these insights, the paper develops a consent management framework that visualises consent management dynamics in peace processes. The paper applies this framework to analyse and compare how arbitral tribunals have managed consent in three recent cases: the Brcko arbitration, relating to an autonomous territorial unit in Bosnia and Herzegovina; the Eritrea-Ethiopia boundary conflict; and the Abyei arbitration in the former Sudan. These cases demonstrate the extent to which arbitral tribunals adapt procedural and substantive rules of international law to manage consent of strategic and tactical players. Based on a comparative analysis, the paper draws conclusions on how the exigencies of durable dispute resolution condition the consent management strategies of international arbitral institutions involved in complex peace processes.

* S Dawkins: Programme Officer (Governance and Peacebuilding) at Conflict Dynamics International. Sophia has worked on capacity building programmes in the Abyei area of Sudan and holds degrees from Oxford University and the Fletcher School, Tufts University.

† B Smit Duijzentkunst: PhD Candidate in Law and WM Tapp Scholar at Gonville and Caius College, University of Cambridge. Prior to coming to Cambridge, Bart served as an Associate Legal Officer at the Codification Division of the United Nations Office of Legal Affairs in New York.

The year 2012 marked the 30th anniversary of the adoption of the United Nations Convention on the Law of the Sea (“LOSC”), which established a new international legal order for the oceans. One of the major developments triggered by the LOSC was the creation of new international institutions. Three bodies were established by the LOSC itself (i.e., the Commission on the Limits of the Continental Shelf, the International Seabed Authority and the International Tribunal for the Law of the Sea). Various sectoral bodies have been established in response to the provisions of the LOSC (e.g., regional fisheries management organizations). In addition, more recently, informal networks of regulators and experts have also been launched to address particular problems without setting up new organizations (e.g., the Ministerially-led Task Force on IUU Fishing on the High Seas, the International Monitoring, Control and Surveillance Network for Fisheries-related Activities and the World Economic Forum Council on Oceans).

As a consequence of this development, there are ongoing discussions on the proliferation of international institutions in this field, a phenomenon which, some argue, led to the fragmentation of the international law of the sea. Apart from fragmentation concerns permeating public international law in general (e.g., the debate over forum shopping with regard to dispute settlement mechanisms), the need for enhanced coordination among international institutions has been repeatedly suggested in the context of the international law of the sea, including: conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction; and the strengthening of the inter-agency coordination mechanism on oceans and coastal issues (i.e., UN-Oceans).

Frequently, the point of departure for these discussions is a perception that the proliferation of international institutions is problematic and may constitute a threat to the realization of global ocean governance. For example, in relation to a proposal for an implementation agreement to the LOSC in the context of marine biodiversity beyond areas of national jurisdiction, some states wish to establish a new body entrusted to designate integrated, multi-purpose marine protected areas on the high seas (or grant such authority to an existing body), arguing that the current international legal framework constitutes an impediment to the establishment of these marine protected areas. In these discussions, the potential impacts of institutional reform on the international legal order are insufficiently explored.

This presentation critically analyses the ongoing discussions on the proliferation of international institutions in the field of the international law of the sea, focusing on potential impacts on the international legal order for the oceans. The presentation first looks at the development of international institutions in this field and seeks to classify them on the basis of, inter alia, their organizational structure and competence. Second, the presentation analyses the actual and potential problems caused by the proliferation of these institutions. Third, the presentation discusses the merits and pitfalls of suggested solutions to the problem.

Partnerships, comprised of states and international organisations (representing the public sector) and companies, non-governmental organisations, research institutes and philanthropic foundations (representing the private sector), are forming in an attempt to respond to pressing global health issues. It is through the work of these partnerships that a shift is taking place which moves (at least partly) governance over global health matters from the hands of states and international organisations into the hands of public-private partnerships. Partnerships are thus becoming capable of affecting the lives and health of individuals and the favorable and potentially adverse impact on their human rights, especially the right to life and the right to health, cannot be ignored. This potentially adverse impact, in fact, leads to concerns of responsibility under international law.

In previous articles, I explored the possibility of holding states and/or international organisations, as partners and/or hosts of global health public-private partnerships, responsible under international law in relation to the acts of these partnerships. If the suggestions made in these articles find application in practice then there remains the hurdle of remedies. The purpose of this paper is thus to consider remedies in the context of hybrid forms of global governance using global health public-private partnerships as a case study.

This paper will discuss the challenges in finding remedies when a state or an international organisation, as a partner and/or host of a global health public-private partnership, has breached human rights. The main focus of the paper will, however, be on the challenge of allocating remedies when there is a plurality of responsible states and/or international organisations.

The Articles on State Responsibility and the Articles on the Responsibility of International Organizations mention the possibility of holding more than one state and/or international organisation responsible for the same internationally wrongful act, however these articles do not elaborate. How then are remedies to those injured to be allocated between (or among) the responsible state(s) and/or international organisation(s) in the instance more than one state and international organisation is responsible? Are remedies to be allocated on a proportionate basis or on a joint and several basis? A further consideration is that of allocating remedies between not only states and international organisations but also among private entities, such as companies, non-governmental organisations, research institutes and philanthropic foundations. These entities do not possess legal personality under international law and are correlatively not governed by rules of responsibility under international law. However, it is possible that these entities should bear the onus of a portion of the remedies.

The rules on how remedies to those injured are to be allocated between (or among) responsible state(s) and/or international organisation(s) in the instance more than one state and international organisation is responsible are, at the moment, underdeveloped. Rules will possibly develop in the future as states and international organisations continue to collaborate however, at present, this dearth of rules poses problems on the international plane. The rules thus need further clarification.

-- Jean Monnet Post-doctoral Fellow, Global Governance Programme, Robert Schuman Centre for Advanced Studies, European University Institute

In 2011, the ILC completed the final reading of DARIO. The corresponding ASR were a convenient starting point for the Commission’s task, but also a solid backdrop which could promote, if followed, coherence in the law of international responsibility. However, the differences in the nature and the modus operandi between states and IOs necessitated the adoption of “new” articles which did not have a counterpart in the ASR.

One of the most debatable provisions that fits into this category, is Article 17 DARIO entitled “Circumvention of an international obligation through decisions and authorizations addressed to members”. The provision forms part of Chapter IV DARIO that regulates scenarios of indirect responsibility and covers abundant practice, from binding SC Resolutions, to EU Directives and IMF loan conditionality. While the need for the regulation of such occasions cannot be disputed, the way the matter has been addressed by the ILC has attracted severe criticism. According to commentators, the proposed text fits uneasily within the objectivised framework of international responsibility, causes conceptual incoherence and hereby magnifies the fissures of the whole responsibility edifice.

The paper argues that the criticism addressed towards Article 17 does not have merit and proposes a doctrinally coherent way of integrating the provision within the normative framework of international responsibility.

The first part –the “context”- is a clarification exercise. It puts into perspective the nature and operation of the different responsibility schemes incorporated in the ILC’s articles (both DARIO and ASR), by juxtaposing them. The analysis disentangles the normative elements of complicity and derivative responsibility and explicates their nature and operation. Indirect responsibility provisions perform a double function: on the one hand, they lift the barrier of the primary/secondary norm distinction by delimiting their respective scope of application; and on the other, they lay out the basis of responsibility in such occasions. It will be argued that the nexus between the coercing/’directing & controlling’/assisting subject and the wrongful act defines the scope of application of the respective provisions, while the basis of responsibility remains unaltered (attribution & breach). The paper is premised upon the argument that this lack of normative analysis has triggered the misunderstandings surrounding the regulation of such scenarios.

Part II, –the “text”- explains how the provision under scrutiny fits within the models analyzed above and how its wording is realigned with the context in which it operates. Arguably, we can draw parallels between Article 17 and the other Chapter IV provisions; the umbrella of derivative responsibility adequately covers situations of normative control (Art. 17 par. 1), while IO authorizations towards States (Art.17 par. 2) fall under the rubric of complicity. Such analogies sufficiently address the underlying questions of parallel/joint/shared responsibility that were too complicated for the ILC to directly address. Therefore, the paper adopts a contextualist approach to analyzing Article 17 and stresses that the coherence of the system of rules construed by the ILC is not compromised through the inclusion of a provision that prima facie appears to bring the law of international responsibility into disrepute.

Alice Lacourt will give a short overview of the structure of the Legal Directorate of the Foreign and Commonwealth Office, and explain our role in the application of sanctions, a technical and complex area where consistent and transparent decision making according to the rule of law is vital. Yet the text of sanctions instruments negotiated at multilateral (United Nations) or regional (e.g. European Union) level can be open to more than one interpretation, and oversight functions vary: for example the Ombudsperson function for one UN regime, EU court review of EU sanctions decisions, and UK courts review of certain aspects of the UK government approach to applying sanctions and making sanctions proposals. In consequence, a single targeted individual or entity may pursue several avenues of challenge, with scope for conflicting approaches to be taken by the respective oversight mechanism on overlapping sets of facts. Whatever the forum, transparent review of decisions is difficult when key information cannot be disclosed for national security reasons. The UN AQ Ombudsperson has devised ad hoc information sharing arrangements with states, while the EU General Court has expressed concerns about its lack of capacity to review decisions based on confidential information. The Justice and Security Bill, currently before the UK Parliament and likely to become law for the UK this summer, will provide a statutory basis for considering national security information in a closed hearing. That may be a route for domestic courts to assess those few sanctions listings which could not be fully argued in open court.

Since the late nineteenth century international law has been thought of as an autonomous legal order, similar in nature if, importantly, not in structure to law within the state. However, the lack of centralised institutions of a judicial, executive or legislative nature appears to impact on this claim to legal autonomy, causing a blurring of the boundaries between legal officials and legal subjects, resulting in a legal order less certain and ultimately less effective in restraining the conduct of sovereign states. Whilst we international lawyers and practitioners have been confident in demonstrating the ontological reality of international law in spite of this “institutional problem” – after all, no state actually denies the law’s binding force – there has remained widespread resignation still over the efficacy of law when held up against the standards of a well-functioning Rule of Law state.

I will argue that this anxiety and perception of institutional weakness has had a prominent effect on our perceptions of the role of international organisations within international law. Throughout the twentieth century, many international lawyers have perceived the turn to institutions, particularly through the creation of universal bodies such as the League, and later UN, as helping to correct or counteract the perceived structural weaknesses of international law. Whilst at times this has involved explicit constitutional analogy, more often this kind of reading has been more “compensatory”, seeing specific institutional bodies – e.g the ICJ, or UN Security Council – as fulfilling necessary constitutional functions within the international legal order as a whole in lieu of the kinds of centralised institutions more familiar from our domestic legal training.

Nevertheless, to the extent that this process of institutionalisation has proven successful, increasingly the perceived benefits of “governance” through increasingly autonomous international organisations is called into question. There has been a noticeable disciplinary angst in response to the proliferation and growing normative authority of different institutions and dispute settlement bodies, which are seen not only as threatening the “fragmentation” of international law, but also risking its “deformalisation,” with the normative impact of many institutions falling outside of the recognised sources of international law. Nevertheless, rather than see these threats as undermining the idea of international law’s constitutionalisation, it seems that international lawyers are again responding through the language of domestic public law (“compensatory constitutionalism,” “global administrative law”, etc.) in an attempt to build or re-establish necessary order and coherence.

I will argue, however, that this deployment of this constitutional language risks undermining precisely the same kinds of Rule of Law concerns which encouraged the institutionalisation of international law in the first place: offering a legitimising vocabulary to increasingly unaccountable actors sitting outside of any formal institutional hierarchies. In contrast to the constitutionalist reading, I will argue that continued frustration over international law’s institutional structure stems from the long-standing – yet I believe mistaken – assumption that international law can be understood vis-à-vis a Rule of Law ideal extrapolated from the context of domestic governance. Instead, I will argue that international organisations have to be understood in both form and function as particular products of the unique social and institutional structure of international law.

* Lecturer in Law, University of Sheffield

By most accounts, informal institutions play an increasing role in global governance, as coordinators, standard-setters, certifiers, dispute settlers etc. Traditionally, most of their action has remained outside the purview of international lawyers, yet today there are increasing calls not only to pay attention to them, but also to grant (some) of the informal rules they produce the status of law. This talk will assess such calls and argue that informal institutions are often at the centre not of international law proper, but of alternative – and increasingly dense – normative structures that challenge the idea of one, unitary international law. The result of the challenge may be a multiplicity of transboundary legalities with different degrees of bindingness and varying addressees.

The paper is aimed at analyzing the growing importance, within international trade law, of technical norms and standards elaborated by private organizations.

The WTO encourages the adoption of international standards through the SPS (Sanitary and Phytosanitary) and the TBT (Technical Barriers to Trade) Agreements, whose underlying philosophy consists in allowing WTO member States to pursue their legitimate goals and interests through the adoption of non discriminatory norms. In order to reduce to a minimum the impact of national norms on trade liberalization, both agreements strongly encourage harmonization through the use of international standards adopted by international standardizing organizations. As a consequence, States are obliged to base their norms on existing international standards ; this obligation is strengthened by the presumption, established by both texts, that a national measure which conforms to international standards is necessary and does not constitute a violation of the GATT/WTO system.

Despite the preference accorded by the Agreements to some specific organizations (such as the Codex Alimentarius Commission or the International Standard Organization), however, a great deal of uncertainty exists as regards which organizations are included among those whose norms can be considered international standards. It is precisely this uncertainty that paved the way for the rising importance of private standardization.

The impact of this phenomenon on the legitimacy of the institutional structure of the WTO is a negative one to the extent that it undermines the preference for intergovernmental rules which underpins the system and it delegitimizes the work of IGOs involved in the rule-making process. On the other side, private standardization can pursue members’ objectives as efficiently (or even more efficiently) as “public” standardization, beside the fact that private actors to which technical norms are addressed scarcely perceive the legal and institutional difference between the two sets of norms. Finally, the undemocratic features which can be present in private standardization have been equally underlined in the work of intergovernmental organizations (ex. the adoption of norms by consensus by the Codex Alimentarius Commission), therefore the former could hardly be deemed to be more democratic simply on the basis of a bias in favor of “public” regulation.

In the light if these elements, the paper will try not only to assess if and to what extent private standards are actually replacing norms elaborated by IGOs, but also the effects of this modification on the institutional structure of the SPS and of the TBT Agreements (with particular attention to the relationship between member States of the WTO and their national standardizing bodies) and in more general terms of the WTO.

This paper examines the nature and impact of the Commission on the Limits of the Continental Shelf (CLCS) in determining the extent of the outer continental shelf. In particular, it examines the interaction of the work of the CLCS with the jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and relevant arbitral tribunals, highlighting areas where a competency clash may occur.

The past twenty years have seen increasing investment by States in the technology required to map the outer continental shelf. Since the first submission to the CLCS by Russia in 2001, 64 further States have followed. So far, the CLCS has issued 18 recommendations. There is therefore a significant backlog of submissions pending consideration, and although the Commission has recently increased its number of annual sessions, the backlog is likely to remain for some time. The considerable number of unexamined submissions raises the possibility that States will proceed to bilateral or multilateral maritime delimitation while the recommendations of the CLCS in a particular geographic area are still pending. The CLCS rules of procedure provide that the Commission will not consider submissions where a land or maritime dispute exists without the consent of all parties concerned. Accordingly States may turn to international courts and tribunals to settle disputes, and such courts may be faced with questions concerning competence to delimit the outer continental shelf, applicable law and the relationship between CLCS recommendations and judicial decisions.

These questions have already arisen before arbitral tribunals in the cases of Canada/France and Barbados/Trinidad and Tobago, as well as before ITLOS and the ICJ. In the Bangladesh/Myanmar delimitation carried out by ITLOS in March 2012, the Tribunal held that it had jurisdiction to delimit the entire continental shelf, before indicating the direction that the boundary line between the parties’ overlapping continental shelves beyond 200 miles should take. Both parties to the case had made submissions to the CLCS. The ICJ, in its decision of December 2012 in Nicaragua v Colombia, held that it was not in a position to delimit the continental shelf boundary between the two mainland coasts (which would necessarily have involved the establishment by the Court of the outer limit of the continental shelf.) Several judges referred to the Court’s capacity to delimit the outer continental shelf in their separate opinions or declarations. If the recommendations of the CLCS eventually indicate that Nicaragua has a continental shelf extending beyond 200 miles, the status of the line indicated by the Court as the eastern limit of the relevant area will have to be evaluated, with the potential for a highly unusual ensuing cut-off effect.

This paper will examine the competence of international tribunals to delimit the outer continental shelf and evaluate the impact of judicial delimitation on the effectiveness of the CLCS.



AUTHOR: Naomi Burke

PhD Candidate at the University of Cambridge

Editor at the Cambridge Journal of Comparative and International Law Blog

http://www.law.cam.ac.uk/people/research-students/naomi-burke/3515

The growth and expansion of regional organisations is a prominent feature in the international system. The move to regional organisations is the result of states and societies seeking ways of pursuing common interests and objectives, as well as addressing issues of common concern. Regional organisations provide a useful mechanism for dealing with the ever increasing pressures of globalization as they occupy an important space between the particular levels of state and society and the wider world. The expansion of regional organisations has also contributed to ongoing discussions about the universal applicability and legitimacy of the international legal system. There is a distinct fear that regional approaches will somehow have a negative impact on the development of international law. At the same time for any legal system to be considered just, and therefore effective, it must be recognised as such by all participants. The dominant European origins and foundations of international law are being questioned in a variety of ways as the self-evident universal nature of international law is no longer accepted as the only way for understanding international law.

Recent developments in regional organisations in the Asia-Pacific demonstrate the dynamics of the influence regional organisations are having upon general international law. ASEAN’s adoption of a Charter and the Pacific Island Forum's adoption of the Pacific Plan, amongst other developments, are significant as they demonstrate how particular groups of states are using international law in order to articulate a particular perspective on the priorities, practices and understandings of international law. These particular approaches are essential to the continual development of international law as a just and effective system for they work to ensure all actors are able to contribute and identify with the system. Regional organisations are recognised as significant entities in the wider processes of international organisation as limited groupings of states are pursuing common objectives by securing a deeper level of agreement and/or substantial institutional organisations in a way that is not possible at the universal level. Regional organisations are playing a crucial part in the processes of globalization as they offer the opportunity for states and societies to be part of the wider international system while at the same time asserting more localised preferences and desires through collective organisation and agreement. Such organisational aspects and processes will be crucial to the ongoing development of international and will be central to its long term effectiveness.

We are now at a stage of international law and relations where the European regional perspective is not the only one being voiced. For the long term effectiveness of international law and international organisation the expressions of diversity that regional organisations provide needs to be recognised and taken seriously. Through an examination of developments relating to human rights protection through ASEAN and the Pacific Islands Forum it is possible to demonstrate how regional influences on the creation and interpretation of international law contribute to the overall effectiveness of the universal system.

This paper will examine the nature and potentially far reaching impact of the Organisation of Islamic Cooperation (OIC) on UN law and policy making. The OIC is generally a poorly researched and understood international organisation, despite its Membership of 57 states (the OIC treats Palestine as a sovereign state) representing the second largest intergovernmental organisation and nearly 30% of UN General Assembly votes. The paper will be in three parts.

By way of introduction to the OIC, the first part will briefly describe the OIC’s key institutional characteristics as a contractually based, closed international organisation sharing a common background of Islamic values and ideals as OIC Charter requirements for membership. It will further examine the nature of the OIC’s law-making powers; outline its principal law-making activities and forms of institutional output; and introduce the notion of OIC law.

The second part will focus on the impact of OIC law on UN law and policy making. To illustrate its potential reach, three examples spanning different fields of international law will be considered. The first concerns the OIC’s influence – both as a UN observer organisation, and through its Membership – towards ‘Palestine’ being fully recognised as a sovereign state. The Palestinian cause has been the central, unifying cause of the OIC since its creation in 1969. After it stepped up the intensity of its campaign during 2011 and 2012, the General Assembly adopted Resolution 67/19 on 29 November 2012 according Palestine the status of a ‘non-Member State observer’.

The second example will examine the potential impact of OIC law on international human rights law, particularly OIC efforts to diverge from universally agreed norms; indeed, since its 60th anniversary, the OIC has rejected the universality of the UDHR. This will be illustrated by the recent, controversial ‘defamation of religion’ resolutions that were sponsored by the OIC within the UN General Assembly and Human Rights Council until 2011. Effectively seeking the universal criminalisation of Islamic blasphemy norms, these resolutions risked diluting and eroding fundamental freedoms of speech and religion. Although no related UN resolutions were adopted during 2012, these matters remain of considerable concern to the OIC which continues to adopt highly emotive resolutions. Consequently, OIC law retains the potential to influence UN norms on these issues, particularly through its continued import by the OIC and OIC Member States into the UN domain.

The third example will consider the impact of OIC law on peace and security matters. This is illustrated by the OIC’s stance regarding the exemption of those groups it considers to be engaged in legitimate national liberation struggles from being classified as unlawful terrorist actors. This has created a definitional impasse in the context of negotiating the draft UN Comprehensive Convention on International Terrorism since the OIC proposed a related amendment in 2005, with little prospect of resolution any time soon.

The paper will conclude in Part three by drawing out from these illustrations OIC law-making trends and themes which are believed to be of wider UN law and policy making significance.

The provisions of the IMF’s Articles of Agreement concerning capital movements have undergone a profound reinterpretation in the practice, as borne out by the Fund’s interventions on the occasion of the current global economic crisis. Indeed, even if the Articles recognize the utonomy of Members in regulating cross-border financial flows (art. VI.3), this circumstance has not prevented the organization to consider this issue in the exercise of its surveillance and financial assistance powers.

The notion of “external stability” endorsed in the recent decisions on bilateral surveillance (according to which under art. IV States are required to adopt policies favouring an external balance that does not give rise to disruptive exchange movements) has reinforced the Fund’s control over measures affecting the capital account, to judge to what extent they have an impact on the Members’ external position. Likewise, under the policy of conditionality, financial assistance is often made conditional upon the adoption by Members of measures concerning capital movements. At the same time, notwithstanding the prohibition to use the Fund’s resources to cope with large or sustained capital outflows (art. VI.1.a), stand-by arrangements have been also approved in favour of States suffering imbalances in the movements of capitals, and, since the 1997-1998 Asian financial crisis, general facilities have been introduced to provide balance of payments support in these circumstances. More recently, the Fund has promoted a code of conduct for capital movements, parallel to the rules concerning the exchange transfers for current transactions codified in the Articles (art. VIII). However, in this case the purpose is not to introduce obligations for the removal of obstacles to payments for financial flows (contrary to art. VI.3), rather to set substantive criteria under which States may open their financial markets, to be also used as a guidance in the surveillance activity.

As to their content, more recent interventions allow to take note of a switch of approach. Indeed, the Fund is no more promoting an abrupt and full liberalization of capital flows (as when the “Washington consensus” was conceived). Rather, a progressive liberalization process is furthered, not excluding recourse to restrictions in time of crisis. From a legal perspective, the greatest issue is the definition of the legal bases of the mentioned Fund’s interventions, as they are not clearly stated in the Articles. Rather, an extensive interpretation or a systemic reading of some provisions (notably, arts. IV, V and VI) have been supported by Members and advocated by the Fund’s Secretariat; in many cases, it is submitted that the pursuit of the purposes set in art. I or a broad wording of the above-mentioned provisions allow to argue in favour of the legitimacy of the referred actions. However, the recourse to extensive or teleological methods of interpretation may also open a debate about a reform of the scope and content of the IMF regime, so that it would better cope with the challenges presented by financial globalization, and define the role of the organization in fostering the stability of interstate financial relationships.

The role of the Legal Counsel to an International Organisation is typically a broad one touching on all aspects of the work of the Organisation. The role includes:

• advising on the compliance of the policies and procedures of the International Organisation with International Administrative Law;

• advising on the privileges and immunities of employees and matters concerning the host state/s;

• contractual negotiations with domestic legal entities and international negotiations with other international entities;

• resolving international disagreements;

• advocacy before international and domestic fora; and

• shaping the development of international law.

This presentation will discuss these different roles and the sorts of issues that are faced by the Legal Counsel to an International Organisation. It will also canvass what skills are required of such a person. The presentation will also contrast the role of Legal Counsel to an International Organisation with the role of International Legal Counsel to a Government. This latter role is one that I recently canvassed in an article published in Volume 61(4) of the International and Comparative Law Quarterly.

The WTO is part of a complex network of international, regional and domestic legal systems and regulatory frameworks. The influences on the development of WTO law extend far beyond its own Members and institutions. Domestic legal instruments have been a source of inspiration for numerous WTO obligations while the rights and obligations of Members under the covered agreements are frequently incorporated into their domestic legal systems. In other words, there is a constant export of norms from one system to the other.

At the same time, the WTO is home to numerous councils, committees and working groups, some of which engage very extensively with other international bodies and their domestic counterparts. Transnational actors seek to take advantage of these networks, encouraging WTO law to develop in their favour. The interactions involved, however, are highly complex and unpredictable.

Despite the failure so far to conclude the Doha multilateral trade negotiations, there are a number of WTO bodies, including prominent committees that have continued to elaborate and develop WTO rules. Such a process of secondary rule-making has not been conducted within a vacuum. Public and private actors both inside and outside of its institutional structure increasingly have a role to play in WTO secondary rule-making activity. For example, international standard setting bodies like the FAO/WHO Codex Alimentarius and private standard-setting bodies like Global GAP in the area of SPS rule-making.

This paper draws attention to the role that transnational law and legal process play in secondary rule-making by WTO institutional bodies. Focusing on three key areas of international trade regulation (safeguards, technical barriers to trade and sanitary and phytosanitary measures) and their related WTO committees, we highlight two issues. One is the importance of these WTO bodies in fulfilling a dual role as both forums and actors in transnational governance. The other is the dynamic normative character of such secondary rule-making by WTO institutional bodies.

Similarly, where further institutional development seems unlikely to be forthcoming out of the Doha Round, we believe that these institutions will continue to develop their identities as independent actors, possibly in unexpected ways and with unanticipated results. As such institutions for transnational governance become more common and effective their identities will undergo change that may transform the WTO as an international institution and the way in which we understand developments in the international economic order.

Thus, in offering an explanatory account for the development of WTO law in three areas of international trade regulation, this paper seeks to highlight the importance of secondary rule-making processes at the WTO as part of transnational law and legal process. At the same time, it raises questions as to how the development of WTO law is to be understood in light of such processes and how the institutional structure of the organisation might influence such behaviour.

The WTO is part of a complex network of international, regional and domestic legal systems and regulatory frameworks. The influences on the development of WTO law extend far beyond its own Members and institutions. Domestic legal instruments have been a source of inspiration for numerous WTO obligations while the rights and obligations of Members under the covered agreements are frequently incorporated into their domestic legal systems. In other words, there is a constant export of norms from one system to the other.

At the same time, the WTO is home to numerous councils, committees and working groups, some of which engage very extensively with other international bodies and their domestic counterparts. Transnational actors seek to take advantage of these networks, encouraging WTO law to develop in their favour. The interactions involved, however, are highly complex and unpredictable.

Despite the failure so far to conclude the Doha multilateral trade negotiations, there are a number of WTO bodies, including prominent committees that have continued to elaborate and develop WTO rules. Such a process of secondary rule-making has not been conducted within a vacuum. Public and private actors both inside and outside of its institutional structure increasingly have a role to play in WTO secondary rule-making activity. For example, international standard setting bodies like the FAO/WHO Codex Alimentarius and private standard-setting bodies like Global GAP in the area of SPS rule-making.

This paper draws attention to the role that transnational law and legal process play in secondary rule-making by WTO institutional bodies. Focusing on three key areas of international trade regulation (safeguards, technical barriers to trade and sanitary and phytosanitary measures) and their related WTO committees, we highlight two issues. One is the importance of these WTO bodies in fulfilling a dual role as both forums and actors in transnational governance. The other is the dynamic normative character of such secondary rule-making by WTO institutional bodies.

Similarly, where further institutional development seems unlikely to be forthcoming out of the Doha Round, we believe that these institutions will continue to develop their identities as independent actors, possibly in unexpected ways and with unanticipated results. As such institutions for transnational governance become more common and effective their identities will undergo change that may transform the WTO as an international institution and the way in which we understand developments in the international economic order.

Thus, in offering an explanatory account for the development of WTO law in three areas of international trade regulation, this paper seeks to highlight the importance of secondary rule-making processes at the WTO as part of transnational law and legal process. At the same time, it raises questions as to how the development of WTO law is to be understood in light of such processes and how the institutional structure of the organisation might influence such behaviour.

The World Bank is one of the oldest multilateral treaty-based international organizations and unsurprisingly so, in nearly seventy years of its existence, the Bank has undergone profound institutional, policy and functional changes. This paper is structured against the background of such ever-changing regulatory framework, and it aims to map out, comprehend and re-evaluate the role of three legal opinions given by the General Counsels of the Bank, that arguably were pivotal in enabling the most significant shifts in institution‘s legal and political development.

The three opinions that the paper focuses on are the following: 1) Counsel’s interpretation of “special circumstances“ within the project financing, that enabled the Bank to fund sectoral reforms in aid recipient states (by Shihata); 2) the analysis of political activity prohibition clause that enabled the Bank to play a significant part in setting national economic policies (by Shihata); and 3) the most recent controversial opinion about relationship between Bank‘s activities and human rights obligations that was supposed to enable closer linkage between institutional framework of development financing and application of human rights standards, and the legal consequences of which are nevertheless questionable (by Danino).

The central question that this paper sets out to tackle is essentially the ‘how‘ of law-making by international institutions. It takes the case of the World Bank and examines the modes of reasoning that the senior legal officers of the institution had followed, in order to open up the gateways for the Bank to adapt its activities to the needs of the changing social, political and economic realities. The analysis of these influential opinions gives insights into the rationale underlying treaty interpretation, which in many regards proves to be the vehicle of international legal change. They are important case studies of ‘constitutional‘ self-censorship that international institutions themselves often have to exercise. More over, the thorough review of legal reasoning projected in these opinions are helpful in addressing the many unresolved issues that currently preoccupies legal scholars interested in international institutional architecture, i.e., How harmless (or far-reaching) is the treaty interpretation exercised by the international organizations themselves? What are the checks and balances available in such setting? Can the so-called ‘international institutional law‘ be considered to be administrative by nature, and what are the implications of such consideration? Those are the overarching questions that the analysis provided in this paper would feed into.

This article presents an argument about informal constitutional change in international organizations (IO’s) through the interpretation of their constituent instruments. The organizations at issue are public institutions, established by international agreement and charged with the exercise of transnational governmental power. They are, by one view, fundamentally treaty-based organizations that derive authority from the consent of the Parties. At the same time, these organizations must be understood as constitutional bodies, constituted with varying degrees of independence and substantial delegated powers over their constituent Member States. Like all governance bodies, including the modern state, IO’s change over time – and not only through formal amendment. Some have asserted a more subtle capacity to evolve over time through practice, informally and autonomously.

I focus in particular on the possibility of constitutional transformation in international organizations through judicial interpretation – specifically through the practice of these organizations’ judicial organs in interpreting their constituent treaties. I want to expose how, in adopting radically broad approaches to the interpretation of their constituent instruments, certain judicial bodies have transformed the organizations to which they belong. This project is thus as much about power as it is about law. I want to suggest that through treaty interpretation, certain organizations have grown more autonomous, and more powerful vis-à-vis their constituent member states. What appears from a doctrinal perspective as idiosyncratic treaty interpretation reappears from a more political point of view as constitutional transformation.

The article is both conceptual and comparative in approach. After an initial theoretical section, I examine the interpretive practices of three international organizations and compare their diverse consequences. I focus on one particular doctrine of interpretation, based on the subsequent practice of the Parties. I trace its use by: the World Trade Organization (WTO) via the Appellate Body; the United Nations (UN) via the International Court of Justice (ICJ); and the Council of Europe (CoE) via the European Court of Human Rights (ECtHR). The first body represents a control, adopting a strict approach to subsequent practice. In contrast, the ICJ and ECtHR have each adopted highly expansive approaches to the doctrine, with the effect of transforming the organizations to which they belong. I argue that in each case, though in very different ways, the judicial body’s expansive interpretation of its formal constituent instrument has led to the dramatic transformation of the material constitution of the organization to which it belongs. I suggest, in the end, that in the context of international organizations, informal and autonomous constitutional transformation through treaty interpretation carries in its wake the potential to produce new problems of legitimation and accountability.

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This Article is not yet published, but has been accepted for publication. It will appear in the Spring of 2013 in Vol. 38(2) YALE J. INT’L L. (2013).

* M.Phil, University of Cambridge, King’s College (Political Thought & Intellectual History) (2008); NYU School of Law, J.D. (2011), LL.M Candidate (2012). I am grateful to Professors Joseph Weiler, Georg Nolte, José Alvarez, Mattias Kumm, Robert Howse, Grainne de Búrca, Ryan Goodman, Jonathan Nash, Stephan Oeter, Friedl Weiss, and Lorenzo Casini for their invaluable comments and advice in preparing this paper. Thanks to Professors Jeremy Waldron, Liam Murphy, Seyla Benhabib, and Neil Walker for their advice at various stages of this project, as well as the participants in the 2012 NYU International Law & Human Rights Scholarship Conference. Thanks finally to Davinia Abdul-Aziz, Megan Donaldson, Angelina Fisher, J. Benton Heath, Arie Rosen and Guy Sinclair for numerous insightful discussions related to this paper. All errors and omissions are of course my own