The climate is changing, and so is climate diplomacy. Global treaties may be failing, while unilateral actions are proving to be contentious both within the climate and the trade regime. At the same time, countries need to be given the right incentives to participate in the fight against climate change and to start curbing their emissions substantially. The European Union's (EU) decision to introduce a Carbon Border Adjustment Mechanism (CBAM) and the momentum around carbon pricing may be the perfect opportunity to revisit these ideas in the form of clubs. What if small groups of countries got together and set the pace for a new era in climate diplomacy? What if they relied on trade measures to do so? Clubs are not new in international law, let alone in international climate law. Compared to global approaches, they may avoid freeriding; compared to unilateral ones, they may reduce the risk of trade frictions. And not all major emitters need to participate right away. As few as two parties could start a climate club, a sort of club within the club, gradually catalyzing or influencing action on climate change. In this essay, we argue that climate clubs enable like-minded countries to assume more ambitious commitments and gradually pull in other countries with them.
{"title":"“Clubbing in the Club”: Could Climate-Related Trade Arrangements Set the Pace for Future Climate Cooperation?","authors":"Makane Moïse Mbengue, Elena Cima","doi":"10.1017/aju.2022.36","DOIUrl":"https://doi.org/10.1017/aju.2022.36","url":null,"abstract":"The climate is changing, and so is climate diplomacy. Global treaties may be failing, while unilateral actions are proving to be contentious both within the climate and the trade regime. At the same time, countries need to be given the right incentives to participate in the fight against climate change and to start curbing their emissions substantially. The European Union's (EU) decision to introduce a Carbon Border Adjustment Mechanism (CBAM) and the momentum around carbon pricing may be the perfect opportunity to revisit these ideas in the form of clubs. What if small groups of countries got together and set the pace for a new era in climate diplomacy? What if they relied on trade measures to do so? Clubs are not new in international law, let alone in international climate law. Compared to global approaches, they may avoid freeriding; compared to unilateral ones, they may reduce the risk of trade frictions. And not all major emitters need to participate right away. As few as two parties could start a climate club, a sort of club within the club, gradually catalyzing or influencing action on climate change. In this essay, we argue that climate clubs enable like-minded countries to assume more ambitious commitments and gradually pull in other countries with them.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"219 - 224"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48713446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union (EU) has been a frontrunner in curbing greenhouse gas emissions, having established in 2005 the Emission Trading System (ETS) and having adopted in July 2021 a proposal for a Carbon Border Adjustment Mechanism (CBAM). This essay explains how the design of the EU CBAM proposal complies with World Trade Organization (WTO) rules, in particular with the principle of non-discrimination. It then discusses how the EU can cooperate with other countries that share similar climate ambitions to decarbonize industrial sectors and achieve the aims of the Paris Agreement. The essay argues that autonomous measures and international cooperation initiatives can work as complementary tools to attain climate neutrality.
{"title":"How WTO-Consistent Tools can Ensure the Decarbonization of Emission-Intensive Industrial Sectors","authors":"Chiara Galiffa, I. G. Bercero","doi":"10.1017/aju.2022.32","DOIUrl":"https://doi.org/10.1017/aju.2022.32","url":null,"abstract":"The European Union (EU) has been a frontrunner in curbing greenhouse gas emissions, having established in 2005 the Emission Trading System (ETS) and having adopted in July 2021 a proposal for a Carbon Border Adjustment Mechanism (CBAM). This essay explains how the design of the EU CBAM proposal complies with World Trade Organization (WTO) rules, in particular with the principle of non-discrimination. It then discusses how the EU can cooperate with other countries that share similar climate ambitions to decarbonize industrial sectors and achieve the aims of the Paris Agreement. The essay argues that autonomous measures and international cooperation initiatives can work as complementary tools to attain climate neutrality.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"196 - 201"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41858109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International courts and tribunals must maintain a delicate balance between consent and coherence when they consider incidental questions as part of their dispute settlement function. There are compelling reasons, in the contemporary world of unprecedented complexity and interdependence, to instill coherence into dispute settlement procedures, so as to avoid the denial of justice. The exercise of jurisdiction over an “incidental question,” however, must not be forced to the point that it undermines the willingness of states to give their consent to such procedures.
{"title":"Between Consent and Coherence: Incidental Questions in an Imperfect World","authors":"Payam Akhavan, Eirik Bjorge","doi":"10.1017/aju.2022.26","DOIUrl":"https://doi.org/10.1017/aju.2022.26","url":null,"abstract":"International courts and tribunals must maintain a delicate balance between consent and coherence when they consider incidental questions as part of their dispute settlement function. There are compelling reasons, in the contemporary world of unprecedented complexity and interdependence, to instill coherence into dispute settlement procedures, so as to avoid the denial of justice. The exercise of jurisdiction over an “incidental question,” however, must not be forced to the point that it undermines the willingness of states to give their consent to such procedures.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"164 - 169"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49489964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay, I discuss whether and to what extent the framing of the main dispute and incidental questions can have a gatekeeping function in relation to the jurisdiction and applicable law of a dispute settlement body. Recent cases have attached critical importance to the identification of the “real” main object of the dispute, and the “characterization” of claims to then determine which issues are incidental to the dispute, rather than focusing on which issues are within the tribunal's ratione materiae jurisdiction. Through an examination of selected case law, I argue that this “characterization approach” could in effect elevate a subjective framing of the “main” dispute to a jurisdictional gatekeeper. This approach introduces unnecessary evaluative determinations while obscuring normative clarity regarding the limits of consent-based jurisdiction and its relationship to incidentally applicable law.
{"title":"Incidental Questions as a Gatekeeping Doctrine","authors":"M. Papadaki","doi":"10.1017/aju.2022.27","DOIUrl":"https://doi.org/10.1017/aju.2022.27","url":null,"abstract":"In this essay, I discuss whether and to what extent the framing of the main dispute and incidental questions can have a gatekeeping function in relation to the jurisdiction and applicable law of a dispute settlement body. Recent cases have attached critical importance to the identification of the “real” main object of the dispute, and the “characterization” of claims to then determine which issues are incidental to the dispute, rather than focusing on which issues are within the tribunal's ratione materiae jurisdiction. Through an examination of selected case law, I argue that this “characterization approach” could in effect elevate a subjective framing of the “main” dispute to a jurisdictional gatekeeper. This approach introduces unnecessary evaluative determinations while obscuring normative clarity regarding the limits of consent-based jurisdiction and its relationship to incidentally applicable law.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"170 - 175"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41510796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
courts and tribunals to consider legal questions jurisdiction formally
法院和法庭正式考虑法律问题的管辖权
{"title":"Introduction to the Symposium on Incidental Jurisdiction","authors":"J. Devaney","doi":"10.1017/aju.2022.25","DOIUrl":"https://doi.org/10.1017/aju.2022.25","url":null,"abstract":"courts and tribunals to consider legal questions jurisdiction formally","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"160 - 163"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47120364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Human rights courts and bodies do not rely on the concept of incidental jurisdiction. As far as I am aware, they never have. Given that these courts and bodies are in many ways typical examples of international courts, this is at first glance surprising. However, a closer look suggests that human rights bodies employ rival techniques to tackle the same problem to which incidental jurisdiction is supposedly responding. This essay sets out, first, that there is nothing unique about the institutional set up of human rights courts and human rights bodies in international law that might explain the absence of incidental jurisdiction. Second, I offer a plausible reconstruction of this absence. I argue that it is not only a rational response to the particular demands of human rights litigation, but that it may even be normatively preferable. The tension between dispute settlement and state consent is modified and heightened in international human rights law; this justifies treating incidental questions with the weight usually attached to the main issues of a case by turning them into questions of treaty interpretation. Third, I illustrate these rival techniques in two areas: jurisdiction in international human rights law, and cases involving armed conflicts.
{"title":"Incidental Jurisdiction in Human Rights Litigation: Surprising Absence and Rival Techniques","authors":"Lea Raible","doi":"10.1017/aju.2022.28","DOIUrl":"https://doi.org/10.1017/aju.2022.28","url":null,"abstract":"Human rights courts and bodies do not rely on the concept of incidental jurisdiction. As far as I am aware, they never have. Given that these courts and bodies are in many ways typical examples of international courts, this is at first glance surprising. However, a closer look suggests that human rights bodies employ rival techniques to tackle the same problem to which incidental jurisdiction is supposedly responding. This essay sets out, first, that there is nothing unique about the institutional set up of human rights courts and human rights bodies in international law that might explain the absence of incidental jurisdiction. Second, I offer a plausible reconstruction of this absence. I argue that it is not only a rational response to the particular demands of human rights litigation, but that it may even be normatively preferable. The tension between dispute settlement and state consent is modified and heightened in international human rights law; this justifies treating incidental questions with the weight usually attached to the main issues of a case by turning them into questions of treaty interpretation. Third, I illustrate these rival techniques in two areas: jurisdiction in international human rights law, and cases involving armed conflicts.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"176 - 180"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49006564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International courts and tribunals have developed two criteria for the exercise of incidental jurisdiction: necessity and ancillarity. Yet the question of whether to make an incidental determination is not unique to the adjudicatory context. International organizations sometimes confront it as well. And their practice in dealing with this question suggests that the criteria of necessity and ancillarity alone are insufficient for assessing whether an incidental determination should be made.
{"title":"Incidental Jurisdiction in International Adjudication and Incidental Determinations by International Organizations","authors":"Peter Tzeng","doi":"10.1017/aju.2022.30","DOIUrl":"https://doi.org/10.1017/aju.2022.30","url":null,"abstract":"International courts and tribunals have developed two criteria for the exercise of incidental jurisdiction: necessity and ancillarity. Yet the question of whether to make an incidental determination is not unique to the adjudicatory context. International organizations sometimes confront it as well. And their practice in dealing with this question suggests that the criteria of necessity and ancillarity alone are insufficient for assessing whether an incidental determination should be made.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"85 1","pages":"186 - 190"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41306491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arbitral tribunals in investment treaty arbitration have not contributed much to the theoretical development of the concept of incidental jurisdiction, even though they have occasionally exercised it in practice. One possible explanation for their apparent reluctance to make explicit and greater use of the concept of incidental jurisdiction is the tendency to adopt a strict approach to jurisdiction governed by party consent. In this essay, I argue that incidental jurisdiction is not in tension with the consensual foundations of international jurisdiction when it is viewed as one inherent power of international courts and tribunals. Key to this argument is that incidental determinations are not binding, and therefore do not need to fall within party-defined jurisdictional limits.
{"title":"Incidental Jurisdiction in Investment Treaty Arbitration and the Question of Party Consent","authors":"Relja Radović","doi":"10.1017/aju.2022.29","DOIUrl":"https://doi.org/10.1017/aju.2022.29","url":null,"abstract":"Arbitral tribunals in investment treaty arbitration have not contributed much to the theoretical development of the concept of incidental jurisdiction, even though they have occasionally exercised it in practice. One possible explanation for their apparent reluctance to make explicit and greater use of the concept of incidental jurisdiction is the tendency to adopt a strict approach to jurisdiction governed by party consent. In this essay, I argue that incidental jurisdiction is not in tension with the consensual foundations of international jurisdiction when it is viewed as one inherent power of international courts and tribunals. Key to this argument is that incidental determinations are not binding, and therefore do not need to fall within party-defined jurisdictional limits.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"181 - 185"},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45086233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)? The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.” Vladimir Putin's gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it mark a definitive change in international law? This short essay will argue that, bloody as the Ukraine conflict has been, the immediate response has been to reinforce rather than reject traditional norms about sovereignty and territorial integrity. At the same time, the invasion and other states’ reaction to it illustrate both the character of, and limits to, authoritarian use of international law.
{"title":"Article 2(4) and Authoritarian International Law","authors":"Tom Ginsburg","doi":"10.1017/aju.2022.19","DOIUrl":"https://doi.org/10.1017/aju.2022.19","url":null,"abstract":"In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)? The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.” Vladimir Putin's gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it mark a definitive change in international law? This short essay will argue that, bloody as the Ukraine conflict has been, the immediate response has been to reinforce rather than reject traditional norms about sovereignty and territorial integrity. At the same time, the invasion and other states’ reaction to it illustrate both the character of, and limits to, authoritarian use of international law.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"116 1","pages":"130 - 134"},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49061506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Russia's invasion of Ukraine has exposed the capriciousness of state and corporate power over human rights online. Events since the invasion have demonstrated the coercive power of the state over online expression, privacy, and public protest. Russia's longtime “war against reality” has deepened in its repression and is dependent on the raw power of criminal law enforcement, surveillance by security forces, censorship by its media regulator, and legal and extralegal demands against internet platforms. Without drawing an equivalence, the European Union has imposed a comprehensive ban on Russian state-controlled media outlets, encouraged in part by the Ukrainian government, whose moral authority under the circumstances has been particularly strong. Notwithstanding state power over them, technology companies continue to be capable of causing or mitigating, if not preventing, human rights harms. Foreign companies and local partners have heroically maintained internet access in Ukraine and resisted Russian censorship and propaganda, the latter resulting in the blocking of key internet platforms by Russia. It is the latest chapter in the struggle among governments, companies, and individuals to control online space. But it is also an opportunity for reflection, for while the Kremlin has flouted its international obligations, governments and companies committed to human rights law cannot so behave. They should exercise their power over public space according to transparent rule of law standards of non-discrimination, legality, necessity, and legitimacy. A headlong rush to Russia-specific rules and enforcement, unmoored from public articulation of human rights standards, risks corroding the global normative framework for fundamental rights online.
俄罗斯入侵乌克兰暴露了国家和企业权力对网络人权的反复无常。入侵后发生的事件显示了国家对网络言论、隐私和公众抗议的强制力。俄罗斯长期以来的“反现实战争”(war against reality)已经深化了镇压，它依赖于刑事执法的原始力量、安全部队的监视、媒体监管机构的审查，以及针对互联网平台的法律和法外要求。欧盟(European Union)对俄罗斯国家控制的媒体机构实施了全面禁令，但没有做出对等的规定，这在一定程度上是受到乌克兰政府的鼓励，在这种情况下，乌克兰政府的道德权威尤其强大。尽管国家对它们有权力，但科技公司仍然能够造成或减轻(如果不能防止的话)对人权的损害。外国公司和当地合作伙伴英勇地维护了乌克兰的互联网接入，并抵制了俄罗斯的审查和宣传，后者导致俄罗斯封锁了关键的互联网平台。这是政府、企业和个人为控制网络空间而展开的斗争的最新篇章。但这也是一个反思的机会，因为尽管克里姆林宫藐视其国际义务，但致力于人权法的政府和企业不能如此行事。他们应该根据非歧视、合法性、必要性和合法性等透明的法治标准来行使对公共空间的权力。不顾人权标准的公开表述，仓促制定针对俄罗斯的规则和执行，可能会侵蚀全球网络基本权利的规范框架。
{"title":"Online Propaganda, Censorship and Human Rights in Russia's War Against Reality","authors":"D. Kaye","doi":"10.1017/aju.2022.24","DOIUrl":"https://doi.org/10.1017/aju.2022.24","url":null,"abstract":"Russia's invasion of Ukraine has exposed the capriciousness of state and corporate power over human rights online. Events since the invasion have demonstrated the coercive power of the state over online expression, privacy, and public protest. Russia's longtime “war against reality” has deepened in its repression and is dependent on the raw power of criminal law enforcement, surveillance by security forces, censorship by its media regulator, and legal and extralegal demands against internet platforms. Without drawing an equivalence, the European Union has imposed a comprehensive ban on Russian state-controlled media outlets, encouraged in part by the Ukrainian government, whose moral authority under the circumstances has been particularly strong. Notwithstanding state power over them, technology companies continue to be capable of causing or mitigating, if not preventing, human rights harms. Foreign companies and local partners have heroically maintained internet access in Ukraine and resisted Russian censorship and propaganda, the latter resulting in the blocking of key internet platforms by Russia. It is the latest chapter in the struggle among governments, companies, and individuals to control online space. But it is also an opportunity for reflection, for while the Kremlin has flouted its international obligations, governments and companies committed to human rights law cannot so behave. They should exercise their power over public space according to transparent rule of law standards of non-discrimination, legality, necessity, and legitimacy. A headlong rush to Russia-specific rules and enforcement, unmoored from public articulation of human rights standards, risks corroding the global normative framework for fundamental rights online.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"38 1","pages":"140 - 144"},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56957983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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