Recent ils_wp items

Doctor Frankenstein's International Organization

Mon, 12 Mar 2012 00:00:00 +0000

In the classic novel, Frankenstein, Doctor Frankenstein creates a living creature in the hope of cheating death. The monster, as the creature is called, horrifies Doctor Frankenstein, turns against him, and kills several people, causing the doctor to regret his decision to make the monster in the first place. When states establish an international organization (IO), they create an institution with a life of its own on the international stage. Though states can, collectively, control the IO, without unanimity among them the organization can often act on its own. The danger for a state, then, is that its creation, like Frankenstein’s, will become a monster and act contrary to its interests. In contrast to Frankenstein, however, states are conscious of this risk and are able to guard against it. This Article explains that much of the existing landscape of international organizations has been formed by the state response to this “Frankenstein problem.” The effort by states...

The Case Against Consent in International Law

Mon, 12 Mar 2012 00:00:00 +0000

The Case Against Consent in International Law

Fixing Failed States

Tue, 23 Feb 2010 00:00:00 +0000

Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders,...

THE DESIGN OF INTERNATIONAL AGREEMENTS

Thu, 8 Dec 2005 00:00:00 +0000

THE DESIGN OF INTERNATIONAL AGREEMENTS

POWER PLAYS & CAPACITY CONSTRAINTS: THE SELECTION OF DEFENDANTS IN WTO DISPUTES

Thu, 8 Dec 2005 00:00:00 +0000

Are smaller members of the World Trade Organization able to use the WTO’s dispute settlement mechanism on an equal footing with the more powerful members of the organization? This paper examines the relationship between the wealth and power of states and their ability to participate fully within this system of dispute resolution. Two alternative hypotheses are considered. The “power hypothesis” predicts that politically weak countries will refrain from filing complaints against politically powerful states for fear of costly retaliation. The “capacity hypothesis” predicts the opposite – low income states will tend to complain about behavior by high income states because the latter offer a higher expected return.

Using the set of all WTO disputes we test these two hypotheses and find considerable support for the capacity hypothesis and no support for the power hypothesis. We conclude that poor states behave differently than their rich counterparts because they lack the...

Food Fears: Health and Safety at the WTO

Thu, 8 Dec 2005 00:00:00 +0000

Food Fears: Health and Safety at the WTO

Peeking Abroad?: The Supreme Court's USe of Foreign Precendents in Constitutional Cases

Thu, 23 Jun 2005 00:00:00 +0000

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from...

The Case for International Antitrust

Thu, 23 Jun 2005 00:00:00 +0000

Competition policy is made at the national level but a great deal of the business activity that it seeks to regulate takes place at the international level. Though it is universally accepted that some level of international cooperation is necessary to make regulation effective under these conditions, there is a considerable diversity of views on the question of how much cooperation is appropriate.

The presence of international activity distorts competition policy in at least two ways. First, it causes the preferred domestic policies of states to diverge from what they would be in the absence of such activity. States that are net exporters of goods sold in imperfectly competitive markets have an incentive to weaken their antitrust rules and states that are net importers of such goods have reason to tighten theirs. Second, the choice of law rules adopted to establish the jurisdictional reach of domestic law create an additional divergence between the substantive laws actually...

War, Responsibility, and the Age of Terrorism

Thu, 23 Jun 2005 00:00:00 +0000

War, Responsibility, and the Age of Terrorism

Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-2000

Tue, 21 Jun 2005 00:00:00 +0000

Over the past forty- five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. Their proliferation over the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. We argue that the spread of BITs is driven by international competition among potential host countries – typically developing countries – for foreign direct investment. We design and test three different measures of competition. The evidence suggests that potential hosts are more likely to sign BITs when their competitors have done so. We also control for diffusion via coercion, social learning, and cultural networks. We find some evidence that coercion plays a role, but less support for learning...

A Theory of International Adjudication

Tue, 16 Nov 2004 00:00:00 +0000

Abstract. Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are “dependent” in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter- American Court of Human Rights, and the new International Criminal Court, are “independent” in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects...