International law and its understanding can evolve outside of treaties, but little is known about the elements that can explain these changes. This paper looks at the debate on border carbon adjustment (BCA) compatibility with the World Trade Organization (WTO) and argues that international law depends on the actors’ perceptions, which can change over time. It applies an interactional international law framework to explain how a policy that was once deemed incompatible with WTO rules is now considered ‘WTO-compliant’ by the European Union. A discourse network analysis is conducted based on debates from the WTO and the literature over 24 years. Results show that since 2012, the legal literature has increasingly been more confident that BCA could be WTO-compatible, despite the absence of significant changes in WTO case law during the same period. This increase in support was sustained by an expanded practice of legality and a perceived lack of legality of applicable WTO rules. This research offers new insights into the dynamics of international law. It provides new methodological avenues for scholars seeking to trace the evolution of law and legal understanding through formal and informal processes.
{"title":"Border carbon adjustment compliance and the WTO: the interactional evolution of law","authors":"Laurie Durel","doi":"10.1093/jiel/jgae007","DOIUrl":"https://doi.org/10.1093/jiel/jgae007","url":null,"abstract":"International law and its understanding can evolve outside of treaties, but little is known about the elements that can explain these changes. This paper looks at the debate on border carbon adjustment (BCA) compatibility with the World Trade Organization (WTO) and argues that international law depends on the actors’ perceptions, which can change over time. It applies an interactional international law framework to explain how a policy that was once deemed incompatible with WTO rules is now considered ‘WTO-compliant’ by the European Union. A discourse network analysis is conducted based on debates from the WTO and the literature over 24 years. Results show that since 2012, the legal literature has increasingly been more confident that BCA could be WTO-compatible, despite the absence of significant changes in WTO case law during the same period. This increase in support was sustained by an expanded practice of legality and a perceived lack of legality of applicable WTO rules. This research offers new insights into the dynamics of international law. It provides new methodological avenues for scholars seeking to trace the evolution of law and legal understanding through formal and informal processes.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139953689","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Government subsidies for fossil fuels, agricultural production, and fisheries amount to trillions of dollars per year. This funding harms economic inefficiency, disrupts trade, and actively exacerbates the global environmental and climate crises. Moreover, the scale of these subsidies far exceeds the support provided to industries and activities that contribute to the transition towards a low-carbon and sustainable future economy. In seeking to discipline such subsidies, trade law has traditionally focused on whether the funding distorts trade without regard to the rationale or purpose of the subsidies. In this article, we argue that this approach to subsidies is at once incompatible with (i) the original vision of multilateral trade law, (ii) what is needed to manage international economic interdependence in today’s world, and (iii) the present moment’s urgent need to take seriously sustainable development as the ultimate objective of the trading system. The reform package we present in this article calls for a reframing of WTO subsidies rules on a foundation that gauges alignment with sustainable development alongside trade distortions, with sustainability becoming the first and foremost test of whether subsidies should be permitted—consistent with the sustainable development mandate in the Marrakesh Agreement that established the WTO.
{"title":"Making international trade work for sustainable development: toward a new WTO framework for subsidies","authors":"Elena Cima, Daniel C Esty","doi":"10.1093/jiel/jgae008","DOIUrl":"https://doi.org/10.1093/jiel/jgae008","url":null,"abstract":"Government subsidies for fossil fuels, agricultural production, and fisheries amount to trillions of dollars per year. This funding harms economic inefficiency, disrupts trade, and actively exacerbates the global environmental and climate crises. Moreover, the scale of these subsidies far exceeds the support provided to industries and activities that contribute to the transition towards a low-carbon and sustainable future economy. In seeking to discipline such subsidies, trade law has traditionally focused on whether the funding distorts trade without regard to the rationale or purpose of the subsidies. In this article, we argue that this approach to subsidies is at once incompatible with (i) the original vision of multilateral trade law, (ii) what is needed to manage international economic interdependence in today’s world, and (iii) the present moment’s urgent need to take seriously sustainable development as the ultimate objective of the trading system. The reform package we present in this article calls for a reframing of WTO subsidies rules on a foundation that gauges alignment with sustainable development alongside trade distortions, with sustainability becoming the first and foremost test of whether subsidies should be permitted—consistent with the sustainable development mandate in the Marrakesh Agreement that established the WTO.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139953656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2021, the USA and the European Union (EU) expressed an interest in deepening their cooperation with each other and other international actors on export controls to address evolving security risks, including the misuse of dual-use technologies to violate human rights. This interest presents an opportunity to probe the potential for US–EU leadership, as a stated intention of these actors, in developing standards that incorporate human rights considerations into export control policy. To undertake this analysis, this article assesses the legal and political context in which the USA and the EU regulate exports and how this context affects potential opportunities for leadership. The article contends that the USA and EU may struggle to exercise joint leadership due to their divergent systems but may be capable of doing so if they invest in creative diplomatic efforts. In particular, the USA possesses greater legal flexibility than the EU to propose new standards and to engage in diplomatic efforts to multilateralize them. In short, the EU’s structural limitations create a dynamic in which the EU will rely heavily on US diplomacy, as well as that of its Member States, to achieve its objective of creating US–EU leadership in this area.
{"title":"Transatlantic leadership in an era of human rights-based export controls","authors":"Nina M Hart, Christopher A Casey","doi":"10.1093/jiel/jgae005","DOIUrl":"https://doi.org/10.1093/jiel/jgae005","url":null,"abstract":"In 2021, the USA and the European Union (EU) expressed an interest in deepening their cooperation with each other and other international actors on export controls to address evolving security risks, including the misuse of dual-use technologies to violate human rights. This interest presents an opportunity to probe the potential for US–EU leadership, as a stated intention of these actors, in developing standards that incorporate human rights considerations into export control policy. To undertake this analysis, this article assesses the legal and political context in which the USA and the EU regulate exports and how this context affects potential opportunities for leadership. The article contends that the USA and EU may struggle to exercise joint leadership due to their divergent systems but may be capable of doing so if they invest in creative diplomatic efforts. In particular, the USA possesses greater legal flexibility than the EU to propose new standards and to engage in diplomatic efforts to multilateralize them. In short, the EU’s structural limitations create a dynamic in which the EU will rely heavily on US diplomacy, as well as that of its Member States, to achieve its objective of creating US–EU leadership in this area.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139953686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nicola Strain, Runar Hilleren Lie, Yuliya Chernykh, Even Espelid, Taylor St John, Malcolm Langford, Isabella Cuervo-Lorens, Daniel Peat, Maria Florencia Sarmiento, Coen Ripson, Maxim Usynin, Faadhil Adams, Tarald Gulseth Berge, Laura Létourneau-Tremblay, Prevy Parekh, Szilárd Gáspár-Szilágyi, Morr Link, Lara Eguia, Øyvind Stiansen, Emilia Onyema
The ability to ensure compliance with investor-state arbitral awards is often regarded as one of the strengths of the international investment regime. Yet, there have been few systematic studies of compliance to assess the extent to which states have actually complied with adverse investor-state compensation awards. This paper presents a new dataset that enables empirical research on compliance with these decisions; it is the first publicly available dataset to focus on what happens after awards are handed down, and in this way complements other databases on international investment law. This paper explains the data collection process (and its associated challenges), discusses the design choices made in selecting inputs and variables, presents a descriptive overview of the data, and examines how variables can be used in future research. Moreover, various cases are used as illustrations of the challenges of collecting and coding data on post-award processes and we explore what missing data can tell us about compliance dynamics.
{"title":"Compliance politics and international investment disputes: a new dataset","authors":"Nicola Strain, Runar Hilleren Lie, Yuliya Chernykh, Even Espelid, Taylor St John, Malcolm Langford, Isabella Cuervo-Lorens, Daniel Peat, Maria Florencia Sarmiento, Coen Ripson, Maxim Usynin, Faadhil Adams, Tarald Gulseth Berge, Laura Létourneau-Tremblay, Prevy Parekh, Szilárd Gáspár-Szilágyi, Morr Link, Lara Eguia, Øyvind Stiansen, Emilia Onyema","doi":"10.1093/jiel/jgae004","DOIUrl":"https://doi.org/10.1093/jiel/jgae004","url":null,"abstract":"The ability to ensure compliance with investor-state arbitral awards is often regarded as one of the strengths of the international investment regime. Yet, there have been few systematic studies of compliance to assess the extent to which states have actually complied with adverse investor-state compensation awards. This paper presents a new dataset that enables empirical research on compliance with these decisions; it is the first publicly available dataset to focus on what happens after awards are handed down, and in this way complements other databases on international investment law. This paper explains the data collection process (and its associated challenges), discusses the design choices made in selecting inputs and variables, presents a descriptive overview of the data, and examines how variables can be used in future research. Moreover, various cases are used as illustrations of the challenges of collecting and coding data on post-award processes and we explore what missing data can tell us about compliance dynamics.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139765810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Integrating non-binding labour standards in binding trade agreements: The ILO’s feedback loop","authors":"","doi":"10.1093/jiel/jgae006","DOIUrl":"https://doi.org/10.1093/jiel/jgae006","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139790958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Integrating non-binding labour standards in binding trade agreements: The ILO’s feedback loop","authors":"","doi":"10.1093/jiel/jgae006","DOIUrl":"https://doi.org/10.1093/jiel/jgae006","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139850950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The green transition is creating exponential needs for critical minerals. As demand currently exceeds supply for many of these minerals, governments worldwide are devising strategies to secure stable procurements of the minerals they lack as well as to ensure that they reap the benefits of their own natural wealth. The European Union (EU) is in a difficult position in this regard due to limited domestic reserves and, thus, serves as an ideal case study to explore developments in international economic law on this issue. Internally, the EU has been reforming its financing mechanisms, developing risk management tools, and enhancing recycling. Externally, the EU has been using international trade tools to focus on access to supply rather than traditional market access issues while also developing new investment rules to open doors and protect its foreign investors in extractive industries. Both internal and external actions are being coordinated with allies through new cooperative mechanisms. However, challenges abound. These strategies will face resistance from resource-abundant economies in view of their growing demand for policy space to protect their own mineral sector. Such strategies are also inherently competitive and, hence, might lead to growing tensions among resource-seeking economies themselves.
{"title":"Critical insecurities? The European Union’s strategy for a stable supply of minerals","authors":"Victor Crochet, Weihuan Zhou","doi":"10.1093/jiel/jgae003","DOIUrl":"https://doi.org/10.1093/jiel/jgae003","url":null,"abstract":"The green transition is creating exponential needs for critical minerals. As demand currently exceeds supply for many of these minerals, governments worldwide are devising strategies to secure stable procurements of the minerals they lack as well as to ensure that they reap the benefits of their own natural wealth. The European Union (EU) is in a difficult position in this regard due to limited domestic reserves and, thus, serves as an ideal case study to explore developments in international economic law on this issue. Internally, the EU has been reforming its financing mechanisms, developing risk management tools, and enhancing recycling. Externally, the EU has been using international trade tools to focus on access to supply rather than traditional market access issues while also developing new investment rules to open doors and protect its foreign investors in extractive industries. Both internal and external actions are being coordinated with allies through new cooperative mechanisms. However, challenges abound. These strategies will face resistance from resource-abundant economies in view of their growing demand for policy space to protect their own mineral sector. Such strategies are also inherently competitive and, hence, might lead to growing tensions among resource-seeking economies themselves.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139765813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Digital regulation in the shadow of digital empires: a quest for cooperation?","authors":"Han-Wei Liu, Weihuan Zhou","doi":"10.1093/jiel/jgae002","DOIUrl":"https://doi.org/10.1093/jiel/jgae002","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139804060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Digital regulation in the shadow of digital empires: a quest for cooperation?","authors":"Han-Wei Liu, Weihuan Zhou","doi":"10.1093/jiel/jgae002","DOIUrl":"https://doi.org/10.1093/jiel/jgae002","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139863927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Excellence in Reviewing Award","authors":"","doi":"10.1093/jiel/jgae001","DOIUrl":"https://doi.org/10.1093/jiel/jgae001","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140489424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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