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Abstract: This Article, originally presented at a symposium, THE WTO AT A CROSSROADS, in 2004 at the Law Faculty of Bar Ilan University in Israel, provides a proposal that responds to the problems posed by the increasing prevalence of regional trade agreements. The Article argues that RTAs have tended to undermine the development of the multilateral trade system. Specifically, they pose an institutional threat to the WTO - they drain states' enthusiasm for multilateral trade negotiations, create conflicts between RTAs and the WTO, and divert resources from the WTO to the RTA process. The Article's proposal would ameliorate those institutional harms through, among other things, greater involvement of the WTO secretariat in the creation of RTAs, as well as through the clear establishment of the supremacy of the WTO over conflicting RTA rules and jurisprudence.
Regional Trade Agreement, Free Trade Agreement, WTO, World Trade Agreement, Article XIV, Trade, International Trade, Regional Trade, GATT. General Agreement on Trade and Tariffs, Trade Diversion, Doha
Abstract: This article spans the fields of comparative and international law as it undertakes a comparative analysis of the character and nature of international law. In so doing, the article employs the new and dynamic scholarship associated with the study of the Mixed Jurisdictions of the world (those legal systems that comprise a mix of the common and civil law legal systems, such as Scotland, Louisiana, Quebec, South Africa and Israel).
As international law increasingly searches for solutions to the problems associated with its new institutions and participants, the comparative analysis provided in this article will allow international law scholars to consider solutions already employed by the Mixed Jurisdictions.
Comparative law, International law, Mixed jurisdictions, Common law, Civil law, Domestic legal systems, Sovereignty, Domestic law, Customary international law, Dual character, Treaty law, Public law, Private law
Abstract: Kansas City is almost as far from foreign lands as is possible within the United States. Nonetheless, our dreams to visit far off countries and to enjoy other cultures should not be cast aside. Ambitions formed during law school to fly to cities in impossibly named countries, to assist foreign princes and to negotiate deals with exotically accented adversaries are as valid for Kansas City attorneys as for those in New York, Washington, D.C., and San Francisco. Indeed, far from abandoning those dreams, now is a superb time to embrace them and make them our own. Globalization demands it. Just as at the beginning of the last century our legal ancestors had to become familiar with the expanding and dynamic interstate commerce of the United States, so too Kansas City lawyers of this new century must be familiar with the modern international commerce - regulated and informed as it is by international, comparative and foreign ("ICF") law. Reprinted with permission of the Kansas City Metropolitan Bar Association.
International Law, Foreign Law, Conparative Law, Globalization, International Trade, Jurisdiction, Kansas City, Domestic Law
Abstract: There are countries that do not fall under the prevailing definitions of developed and developing country that are employed by the World Trade Organization (WTO). The WTO fails to take into account the special circumstances and needs of these countries. While such special circumstances and needs are diverse, this Article focuses on one facet: sub-national geographic differential development. Geographic differentiation means that some countries, often the biggest non-developed countries, include regions that are highly developed, and some that are, in significant respects, economically less developed. Certainly there are other scenarios where countries may fall between the developed and the developing world. This demonstrates that the WTO definitions of development are arbitrary and that classification of countries in this way does not take into account their individuality. Given the large number of developing countries it is inconceivable that these countries would be similar or should be treated the same within the trade context. Perhaps a development policy that is more reflective of the differences among developing countries would be more successful. The Proposal in this Article regarding geographic differentiation concerns just one facet of the diversity that could be taken into account to produce a better development policy, both in terms of effectiveness and in terms of economic efficiencies. This Article's examination of the international trade system's development policy offers a proposal to resolve the issue of differential geographic development. The Proposal should be applicable within any trade and development policy, such as those developed over the course of the WTO Doha trade negotiations. The adoptability of the Proposal stems from the fact that it does not advocate a radical departure from current development policy, but instead recommends how development policies could be refined to be more effective. Despite the fact that this Article's Proposal advocates a very modest change to the present WTO treatment of development, in so doing it will provide a critique of some of the underlying fundamental issues of international trade development policy. Additionally, this Article and its accompanying Proposal will contribute to the resolution of the many problems associated with Russian WTO membership accession. Indeed, the issue of geographic differential development first arose in the context of analyzing the issues that Russia will face over the next few years as it seeks membership in the WTO. Russia is a country that is neither clearly a developing country, nor a developed country. Accordingly, this Article will use Russian examples to highlight the problems and benefits associated with geographic differential development and the Proposal to resolve that phenomena. The Proposal calls into question the idea of treating states such as Russia and India as interchangeable units. It raises serious questions related to the following development policy issues: graduation of countries from developing to developed country status; the relationship of islands of prosperity with surrounding less developed regions; and issues of regionalism and federalism. This Article also considers the Proposal's applicability to disadvantaged regions in the developed world. Additionally, this Article discusses the real-world problems that would arise as a result of implementation of this Proposal. Potential problems include execution issues and derivative consequences on the domestic politics of the subject countries. Finally, this Proposal is not just confined to the ivory tower of academia; it is pragmatically relevant to the accession of Russia to the WTO.
WTO, World Trade Organization, developing countries, developed countries, geographic differentiation, non-developed countries, economic development, international trade, Doha, Russia, trade negotiations, development policy
Abstract: This essay is a short (approximately 1400 words, including footnotes) and to the point humorous indictment of the present scholarship (articles and journals) within the American legal academy. Nonetheless, the issue raised by this essay is a serious one – that the proliferation of journals and articles is threatening to overwhelm the system’s ability to discern good from bad scholarship. The same issue is happening with the proliferation of judicial opinions. The essay notes that these issues are neither new (the Roman legal system encountered similar issues) nor confined to the United States (e.g., the English have recently handled a comparable issue with respect to judicial opinion citations). The essay concludes by recommending the legal Academy reconsider the present version of student run and edited law reviews.
law journal, law review, legal scholarship, legal education
Abstract: This chapter appears in a book published by the American Society of International Law as part of their Studies in Transnational Legal Policy series, Trade as the Guarantor of Peace, Liberty, and Security? Critical, Historical, and Empirical Perspectives (American Society of International Law Press, Studies in Transnational Legal Policy: A Series of Books) (2006) (Padideh Alai, Tomer Broude, & Colin B. Picker eds). This chapter concerns the utility of employing trade to reduce armed conflict. The chapter, as an initial matter, examines empirical studies that have considered the relationship of trade to armed conflict and suggests that the studies overall are inconclusive. The Chapter then explores why trade might not have much of an impact on armed conflict. The Chapter suggests that as armed conflict is usually driven by passion and emotion, the cold promise of trade will typically have little to no impact on those emotions and passions. The Chapter then concludes by briefly considering the consequences of pursuing doomed policies that try to employ trade to reduce armed conflict - consequences ranging from perpetuating economic inefficiencies to distracting policy makers from more suitable strategies to reduce armed conflict.
Trade, Armed Conflict, War, Emotion, Passion, World Trade Organization, Middle East, International Law, International Policy, Transnational Legal, Policy, International Trade, National Security
Abstract: From the Stone Age to the space age, technology has acted as an invisible hand on the development of society, culture and the law. This invisible hand has also reached across borders to have a significant impact on international law, from prehistory to the descent of the Mir Space Station into the Pacific Ocean. Technology has been ubiquitous in international law. Furthermore, with the increasing significance of technology in this Electronic Age, technology will continue to play a significant role in the creation, alteration and destruction of international law. But when technology and international law collide, international policy makers are caught in the middle coping with many unusual problems and issues. Any resultant international regime may be stillborn or born with such devastating birth defects that it either lives a short time or lives a life with consequences unintended by its creators. This Article seeks to provide those policy makers with the beginning of a methodology for coping with problems raised by technologically driven change to international law. Failure to respond appropriately to technology can be devastating for policy makers and the international regimes they work so hard to create and nurture. For example, the technology-related problems faced by policy makers can result in such significant infirmities as treaties entered too late to be relevant or too early to accurately manage the relevant technology. Furthermore, inaccurate information on the frequently very complex technology can produce international law that fails to reflect accurate conceptions of the technology, making that international law irrelevant or damaging from its inception. Similarly, reliance on industry for the necessary technical data can be very troublesome in today's world of multinational corporations operating in increasingly globally competitive technology sectors. Perhaps most problematic is the concept that technology is a determinate force that acts as an invisible hand creating, shaping and destroying international law. Failure to handle such a powerful force will result in policy makers essentially abdicating the international regime to technology. Thus, there are significant consequences when policy makers do not succeed in managing the many concerns raised by technology. Even though policy makers must be closely concerned with the "nitty gritty" of their international regimes and negotiations, this Article advocates that policy makers have much to gain from taking a macro or holistic view of the issues raised by technology. Macro-examinations can provide larger theoretical understandings and can reveal previously hidden characteristics that are simply not discernable from the "trenches." Viewing technology from "40,000 feet up" reveals certain patterns, pitfalls, and lessons for policy. This Article will undertake such a macro-examination of the relationship between international law and technology and will hopefully launch the development of a methodology for use by those policy makers who are forced to integrate technological innovations into international law. Such a theoretical template should hopefully provide those policy makers with a consistent, realistic and rational response to technological assaults on international law. In contrast to this Article's identification of a methodology derived from a macro-examination of international law and technology, most scholars who have examined the impact of technology on international law have tended either to concentrate on institutional changes wrought by technological innovation or have focused on the impact of specific technologies on individual substantive areas of international law. Indeed, this focus on the particular was noted over thirty years ago by C. Wilfred Jenks, who stated that "[t]he greater part of current research concerning the international law aspects of scientific and technological developments relates to specific developments rather than to the problem as a whole . . . ." This article is a somewhat belated response to that call to arms to examine the "problem as a whole." Part I of this Article will examine the role that technology plays in the creation of international law, with a review of some examples of historic and recent international legal regimes that have been changed as a result of technological innovation. That examination will provide essential background for development of the methodology. Part II will explore concepts such as the fact that technology is frequently the irresistible determinative factor in the creation of international law. Part II will conclude with a synthesis of the methodology in the form of a "roadmap" of questions applicable to the problems facing policy makers when technology and international law collide. Finally, Part III will apply the revealed methodology to national security export controls, an international legal regime that is presently under "attack" from technological innovation. This export control regime was vigorously debated in 2000-2001, when the Senate Banking Committee moved forward with a proposed reauthorized Export Administration Act. Part of that continuing debate reflects differing perspectives on the impact and role of technology on international law. There is an immediate need for a methodology for handling technology and international law issues.
International law, invisible hand, technology, international policy, treaty, treaties, industry, technical data, multinational corporations, global competition, negotiations, international negotiations, macro-examination, holistic, methodology, C. Wilfred Jenks, institutional change, irresistible
Abstract: Reputation is an important and complex issue for individuals, communities and nations. The notion behind reputation is that individuals receive information about the behavior of others from third parties; this information is then used to decide whether or not to behave in a similar manner, and how to interact with the other person. Positive reputational information results in increased willingness to act cooperatively with the other person, while the opposite reaction occurs when individuals are provided negative reputational information. Similar to the reputations of individuals, state reputations can be highly inaccurate. State reputations may be flawed or bear little resemblance to the actions of the states themselves, creating reputational fallacies. Reputational fallacies raise important issues for international law. In particular, the utility of reputation as a compliance mechanism, when reputation does not accurately reflect state behavior, may impact the effectiveness of international law. This Article will examine the problem of reputational fallacies through a comparative examination of two states with very different reputations in the international trade arena: the United States and Canada. The ensuing examination of U.S. and Canadian trade actions explores whether each state's reputation is logically connected to its actual behavior in the international trade arena. This Article ultimately concludes that there is little substantive support for each state's reputational difference. While this Article's examination is confined to the trade actions of the United States and Canada, it nonetheless suggests that reputation - as a means of enforcing state compliance with international obligations - is, at best, an inaccurate tool of international law. In fact, this Article suggests that reputation, at its worst, is harmful to international law compliance because it introduces fallacies and inefficiencies, as well as a whole host of other problems associated with its inherent inaccuracy.
International Trade, International Law, Canada, Reputation, Trade Statistics, NAFTA, WTO, Trade Litigation
Abstract: This peer-reviewed Article applies the ever more sophisticated Mixed Jurisdiction scholarship to a comparative law analysis of international law. In so doing, the Article shows both that this emerging scholarship has vitality outside its traditional jurisdictions as well as provides useful analysis for those engaged in the study and development of international law.
The rationale for this Article lies in a concern that international law has reached a turning point, perhaps even a crisis point. The growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands not previously experienced or considered upon international law.
For the most part international law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from looking for ideas from national legal systems. In other words, there is a view that traditional comparative analysis will not help the development of international law. This Article seeks to rectify this problem by showing substantial congruence between international law and those national legal systems that can be classified as Mixed Jurisdictions.
Mixed jurisdictions, Comparative law, International law, International legal institutions, Civil law, Common law, Public law, Private law, Dual character
Abstract: Despite its historic presence in American law, comparative law was until recently largely the preserve of a few specialists, often émigrés from Europe. On occasion a legal scholar from another field would consider and employ comparative methods, but for the most part American legal scholars focused only on domestic legal matters from domestic perspectives. If they did tend to look further afield, it was usually to consider legal issues in England or, less often, in other common law or English language legal systems. Practitioners and policy makers were not any more sophisticated and indeed were likely even more parochial. Today, however, certain factors, chief among them the accelerating rate of globalization, are forcing a change in perspective throughout the legal community. Increasingly American legal scholars, practitioners and policy makers are considering how legal issues are handled in other legal systems - through an international, foreign and comparative law lens. That movement is not taking place, however, without controversy and, of greater relevance to this article, without some levels of misunderstanding, inaccuracy and confusion.
Comparative law, Globalization, Global legal systems, International law, Foreign law, ICF law, Comparative methodology, Legal culture
Abstract: This abstract is taken from an article entitled "'A Light Unto the Nations' - The New British Federalism, the Scottish Parliament, and Constitutional Lessons for Multiethnic States," by Colin B. Picker, published in 77 Tul. L. Rev. 1-90 (2002). Reprinted with the permission of the Tulane Law Review Association, which holds the copyright.
This Article explores the nature of the most important aspect of Britain's recent constitutional upheavals - devolution of power to Scotland and the creation of the new Scottish Parliament. The Article argues that this devolution has transformed one of the world's oldest and most centralized countries from a unitary to a federal constitutional system. In addition to helping us understand our own federalism through examination of another, the Article demonstrates that this new and unique federalism provides important lessons for regions experiencing ethnic conflict-such as Afghanistan, the Middle East, and the Balkans.
Federalism, Devolution, Scotland, Scottish Parliament, Welsh Assembly, Northern Ireland, British Constitution
Abstract: In 1994, following the breakdown of negotiations to revise the Canada-United States Pacific Salmon Treaty, Canada imposed a fee of $1500 Canadian on all U.S. commercial fishing boats transiting Canada's Inside Passage between Washington and southeast Alaska. The attempted revisions to the Treaty concerned an effort by the parties to create a meaningful conservation regime that would allot to all parties an equitable catch of Pacific salmon, while allowing many endangered salmon stocks the chance to recover from overfishing. The Inside Passage transit fee lasted eighteen days during which roughly three hundred U.S. boats were made to pay the fee. The transit fee violated many provisions of the United Nations Convention on the Law of the Sea (UNCLOS). In particular, the fee violated the right of innocent passage afforded to vessels travelling through waterways like the Canadian Inside Passage. In addition, the fee violated transit guarantees under the General Agreement on Tariffs and Trade (GATT). However, international law is not composed only of treaty law but also includes uncodified international norms and customs--customary international law. This customary international law is often forged in the crucible of international disputes. How states behave and what behavior is considered acceptable by other members of the international community create much of the corpus of customary international law. This Article's examination of the international dispute over the Inside Passage fee will cast light on the emerging customary international law doctrine of lawful, nonforcible countermeasures. Countermeasures may serve to legitimate a state's otherwise illegal breach of international law. However, unlike common law justification, international law justification has not been codified in any international treaty or convention. Rather, it is an emerging and debated norm of customary international law. Hence, examinations of international disputes in which countermeasures are used can illuminate the doctrine of countermeasures. Every resort to a countermeasure within a dispute helps to define the boundaries of that doctrine. This Article will argue that the Canadian Inside Passage transit fee can be characterized as a countermeasure. When so characterized, the transit fee should not be considered illegal under international law, even though the imposition of such a fee violated many of Canada's treaty obligations. In addition, because the Inside Passage fee is a concrete example of a countermeasure, an examination of the fee can help illuminate this emerging doctrine of customary international law. The Pacific salmon dispute involves competing claims and conservation plans for the salmon in the region. This Article will primarily explore the actions of the parties involved in one of the more serious manifestations of this ongoing dispute, the Canadian Inside Passage transit fee. The Article will not examine the complex questions surrounding the merits of the parties' underlying claims, namely, who is entitled to the disputed salmon; rather, the Article will focus on the recent countermeasures employed by the two parties. In addition, this Article will focus on the parties' individual actions and not on the many complex negotiations involved in this dispute. Part II of this Article will describe the history of the dispute, recent developments, and the parties' individual perspectives. Part III will examine the legality of the fee under international treaty law and under the emerging doctrine of countermeasures.
Pacific Salmon Treaty, Inside Passage, Canada, transit fee, United Nations Convention on the Law of the Sea, UNCLOS, innocent passage, General Agreement on Tariffs and Trade, GATT, international law, treaty, treaties, customary international law, international norms and customs, countermeasures, int
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