Online research in philosophy

This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of "soft law," or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that states routinely enter into agreements establishing international rules and regulatory standards in a wide range of subject areas, from banking to arms control to the environmental protection, that are not legally binding.I begin by proposing a new definition of soft. Although previous definitions have often distinguished soft law from hard law on the basis that only the latter is legally binding, no one has explained what distinguishes soft law from purely political arrangements. By contrast, this article defines soft law as those obligations that, while not legally binding, are given some legal effect through separate legal instruments. The Nuclear Suppliers Group Guidelines, for example, are not legally binding on states, but arguably give content to legally binding obligations in the Nuclear Nonproliferation Treaty, and are also given domestic legal effect by statute and regulation. This new definition helps us understand what is "legal" about soft law, while at the same time allowing us to analyze differences between hard and soft law. I then argue that states use soft law as a way to delegate authority over the content of legal rules and regulations to states that possess a particularly strong interest in those rules. Making an agreement non-binding lowers the penalty associated with deviating from the existing legal rules, and thus encourages states with a significant interest in the content of legal rules to unilaterally innovate. This oligopolistic approach to the evolution of legal rules can, under certain circumstances, lead to more efficient legal rules by avoiding the hold-up problem involved in renegotiating contracts in which every state effectively exercises a veto over potentially efficient amendments. As such, the choice between soft law and hard law implicates a tradeoff between the procedural equity inherent in the doctrine of sovereign equality, and the efficiency of legal rules. Soft law privileges the latter over the former.

Michael Philips in his paper 'Are Coerced Agreements Involuntary?' argues against the widely accepted claim that agreements secured by coercion are involuntary and hence the law should not enforce coerced agreements. Philips's argument relies, I argue, upon an indefensible account of voluntariness. His account of voluntariness does not provide a justification for the system of voluntary exchanges, nor does it link up with our entrenched views about moral and legal responsibility. After arguing for the inadequacy of Philips's analysis of voluntary, I show that Philips has not established the conclusions he thinks he has; specifically, he does not show that agreements made in response to coercion are not involuntary, that coercion does not invalidate agreements, and that the distinction between illegal and legal means which he is so eager to make cannot do the work he wants it to do.

This article uses Hans Kelsen's theory of a legal system to take a fresh look at European Community law, and the relationship between the European Community, its Member States, and international law. It argues that the basis of the Community's legal legitimacy is indeterminate, and offers a model to accommodate that indeterminacy. This model is founded on a constructivist approach suggested to be particularly useful in the EC context. Using this approach, it is argued that the concepts of system, autonomy and sovereignty in the Community can only be understood through the recognition of a plurality of viewpoints, and that it is crucial, in describing the Community, to distinguish between a concept per se and the choice to adopt that concept.

The Amsterdam Treaty's introduction of Article 65 into the European Community Treaty took little time to achieve practical importance. In fact, the questions were practical as early as they were theoretical. A 1992 request by the United States that the Hague Conference on Private International Law negotiate a global convention on jurisdiction and the recognition of civil judgments resulted in a laboratory for the new-found competence of the Community. Thus, negotiations already underway--which included delegations from all 15 EU Member States--were affected significantly by the transfer of competence from those states to the Community institutions for matters under consideration at The Hague.The transfer of competence for judicial cooperation resulted in tensions internal to the Community and at the same time changed the dynamics at the Hague Conference, where other delegations were left for several years to consider just what the source of authority was for potential conclusion of a global treaty that would be effective in the Community. This article traces the history of the negotiations at The Hague, considers the parallel changes on the same issues within the Community, and reviews from a U.S. perspective the resulting cross-currents. While the evolution of Community competence concurrent with ongoing negotiations at The Hague caused uncertainty for negotiators, it also served to highlight the developing role of the European Union as a player in an area previously untouched by Community institutions on an external basis. It also tested the global role of the Hague Conference as a traditionally Euro-centric organization that now must expand its reach in order to remain viable when private international law for Europe will be developed in Brussels. Finally, it accented further the differences in conceptual approaches to judicial jurisdiction, especially between the United States and continental civil law systems. In doing so, it demonstrated that Community competence for external relations in judicial cooperation requires special attention to the relationship between the United States and the European Union.

While international judicial forums such as the International Court of Justice ("ICJ"), the International Criminal Court ("ICC"), and regional criminal courts have been important developments, based on actual use and successful results the dispute settlement system of the World Trade Organization ("WTO") has had much greater impact. Most settlement of disputes between persons of different countries takes place, however, not at the ICJ, or the ICC, or the WTO, but in private arbitration and in litigation before national courts. Peace (and justice) are promoted and kept on a regular basis through the process of reaching decisions in specific cases involving specific parties. In all of this, lawyers play the central role-as advocates, as judges, as arbitrators. Lawyers are day-to-day peacemakers. This article considers one part of the evolution of Europe: the developing competence of the European Union over matters of private law, private international law, and judicial cooperation - in other words, the role of the European Union (through the institutions of the European Community) in private litigation.

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.

This article addresses the impact of politics and diplomacy upon the enforcement of international legal obligations through the example of non-violation complaints in the World Trade Organization (WTO). Although this remedy inherited from the past has always been criticized, both the scope and the effects of non-violation complaints upon the WTO dispute settlement system have been disregarded and misunderstood. Only a few WTO members have insisted on using this remedy to the detriment of the immense majority of WTO members for which non-violation complaints still represent an unaffordable luxury. Therefore, this article retraces the negotiation history of this remedy and its entire jurisprudence in order to demonstrate that the WTO dispute settlement system can neither undermine the results of negotiations reflecting the power struggle amongst sovereign nation-states, nor remedy their failure to negotiate by creating new legal obligations. As a result, the security and predictability of the WTO dispute settlement system is at stake, for WTO panels and the Appellate Body have been reluctant and unable to define the ambiguous legal concept of non-violation.

The judgment of the European Court of Justice ("ECJ") in Petrotub represents a good opportunity to readdress some of the questions surrounding the enforceability of WTO law in the European Community ("EC") legal order. In Petrotub, the ECJ confirmed a key opening in its case law through which private parties can invoke WTO law to test the legality of Community acts. Pursuant to this line of case law, better known as the Nakajima doctrine, WTO law can serve as a ground for review in cases where the EC intends to implement a particular obligation entered into within the framework of the WTO. The ECJ, first in Portugal v. Council and later in OGT Fruchthandelsgesellschaft, and the Court of First Instance ("CFI"), in some of the banana judgments, had advocated a narrow interpretation of the Nakajima doctrine. The judgment of the ECJ in Petrotub confirms that the Nakajima line of case law has not been abandoned.

This article deals with the question whether the WTO Dispute Settlement Body has the freedom or even the obligation to consider human rights as applicable law beside WTO law within a dispute settlement or whether the Dispute Settlement Body is restricted only to law covered by the WTO agreement. It is worked out that due to the fact that the WTO member states are also members of the UN and have also signed numerous human rights treaties, the Dispute Settlement Body has the right to consult also human rights in order to create con-formity within the legal system. This point of view is also supported by several articles of the WTO Dispute Settlement Understanding.

The effect of the WTO Agreements within the legal order of the EU has been the object of a fierce controversy in the case law of the Court of First Instance and of the European Court of Justice ever since the conception of the WTO. The case law of the Luxembourg Courts clearly indicates that practitioners seem to have explored practically all the boundaries of this extremely fascinating subject. Direct Effect of WTO law is a collection of essays written over a period of more than ten years and chronicles the evolution in the case law of the European Courts in Luxembourg on the enforceability of GATT and WTO law in the EU legal order. Some of the essays concentrate on more controversial subjects such as the status in the EU legal order of decisions taken by the WTO dispute settlement bodies and the question whether the EU institutions should be held liable under EU law for not acting in conformity with WTO law. The book also contains some essays analyzing the opportunities given to EU companies to enforce WTO law through the application of the so-called Trade Barriers Regulation and gives an almost complete picture of how WTO law can be enforced in the EU legal order by individuals.