Poster session.

Author:Alford, Roger P.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This poster session was convened at 12:15 p.m., Friday, March 27, as a research showcase to allow more than a dozen academics to present their innovative work in an informal environment. Below are brief summaries of their varied research.

THE NOBEL EFFECT

This project approaches the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. Essentially, this theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or "norm cascades"), and norm internalization. As such, constructivism treats international law as a dynamic process in which "norm entrepreneurs" interact with state actors to advance new norms with the objective of states adopting and ultimately intemalizing those norms. Given the importance of this school of thought, it is surprising that scholars have yet to map the history of modern international law from the constructivist perspective. This Article is the first part of a larger project that attempts to do just that, applying the constructivist theory of international relations to argue that Nobel Peace Prize Laureates have been profoundly instrumental as norm entrepreneurs in the emergence, cascading, and internalization of international law norms.

Examining the history of modern international law through a constructivist lens reveals that international law has had several distinct periods, each with its own particular narrative. The Pacifist Period (1901-1913) began with a vision of the abolition of war and the peaceful settlement of international disputes. The Statesman Period (1917-1938) built on that foundation with fragile institutions, imperfectly constructed to secure and maintain international peace and security. It also saw the emergence of more lasting international norms combating the unlawful use of force. The Humanitarian Period (1944-1959) established a more effective international architecture and crystallized international humanitarian norms regarding the use of force. The Human Rights Period (1960-1986) emphasized protection of the individual as one of the central pillars of international law. Finally, the Democracy Period (1987-present) witnessed the triumph of democracy at the end of the Cold War, with widespread recognition that only the democratic form of government was suitable for realizing deeper yearnings of international peace and justice.

The Laureates during the Pacifist Period focused on realizing the dream of the abolition of war and the pacific settlement of disputes. This movement included populist pacifists, parliamentary pacifists, and international jurists. The populist strand of pacifists envisioned a future world without war. These pacifists worked through peace congresses, mass media, and pacifist publications to influence popular opinion about the inhumanity of war and the inevitability of perpetual peace. The parliamentary pacifists were political elites who shared the pacifist vision but were more grounded in political reality. Through parliamentary discourse across national boundaries, these Laureates helped transform the pacifist dreams into serious political debate. Finally, the Laureates who were international jurists actively participated in the Hague Peace Conferences and offered technical expertise in establishing legal principles for a future world that could be governed by law rather than power.

The Laureates during the Statesman Period were markedly different from the Laureates of the Pacifist Period. The most notable Laureates during this period were statesmen. These Laureates were honored for their efforts to build a global infrastructure and use practical politics to promote international peace. Two of these Laureates, Lion Bourgeois and Woodrow Wilson, were recognized at the dawn of the League of Nations for their work in structuring international relations based on a vision of an international legal regime. It was during this period that Laureates promoted regional peace through the treaties of mutual non-aggression known collectively as the Locarno Pact. Laureates also were recognized for the Kellogg-Briand Pact--which renounced war as an instrument of national policy in relations between nations.

In the aftermath of the Second World War, the Nobel Peace Prize shifted its emphasis yet again, this time to humanitarianism. Humanitarianism is understood in the traditional sense of promoting human welfare, saving human lives, and alleviating human suffering. But it also embraces the legal definition of humanitarian law, i.e., the international law dealing with the regulation of the conduct of war, including the use of the means of warfare and the treatment of prisoners of war and civilian populations in armed conflict. Several humanitarian organizations were recognized during this period. The International Committee of the Red Cross (ICRC) was honored for its field operations and for its efforts to promote international humanitarian law. With the 1949 Geneva Conventions, the ICRC dramatically expanded the protections under international humanitarian law, including the treatment of wounded soldiers, prisoners of war, and civilians under enemy control. The postwar period also honored numerous individual humanitarian Laureates, including notable humanitarians such as George Marshall and Albert Schweitzer.

Beginning in 1960 with the recognition of the first black recipient, Zulu Chief Albert Lutuli, the Nobel Committee turned a dramatic new direction toward human rights. During this period, human rights came to be recognized as an indispensable ingredient for achieving peace. Several human fights Laureates were instrumental in establishing major international human rights treaties. Other Laureates played central roles in the evolution of human rights law as victims of injustice who served as symbolic representatives of their people. The last human rights Laureates during this period are among the most remarkable religious leaders of the century.

The final period in the history of the Nobel Peace Prize is the current age of democracy. Beginning in 1987, the Nobel Committee began emphasizing the intimate relationship between peace and democracy. The democracy Laureates generally fall into three major categories. The first category represents the pro-democracy dissidents in countries where political freedom is threatened. The second category includes transformational statesmen who were instrumental in helping guide their respective country to becoming transitional democracies. The third category of Laureates includes democracy advocates who used their political or institutional clout to promote democracy in their region.

By Roger P. Alford, Professor, Pepperdine University School of Law. Roger Alford, The Nobel Effect: Nobel Peace Prize Laureates as International Norm Entrepreneurs, 49 VA. J. OF INT'L. L. 61 (2008).

THE COSTS OF DECENTRALIZED ENFORCEMENT OF WTO LAW *

LEGAL BACKGROUND

As is well-known, under the World Trade Organization (WTO) legal framework, when a violation is deemed to occur, Members have recourse to a quasi-automatic dispute settlement system. If a violation persists after the WTO Dispute Settlement Body (DSB) has adopted a report, Members hurt by the illegal measures can be authorized to retaliate against the scofflaw Member. The WTO obligations are, thus, centrally enforced by this body.

We study the possibility of letting DSB decisions be enforced within the European Community (EC) legal order; such mode of enforcement is accordingly termed as "decentralized." This prospect has surfaced each time private parties bearing the brunt of retaliation have initiated disputes before the European courts. The recent FIAMM case, (1) delivered on appeal by the European Court of Justice (ECJ) in September 2008, appears to have consolidated an approach facially precluding any possibility of directly resorting to the DSB's rulings in order to obtain damages due to the EC non-compliance with such rulings and is complementary to Van Parys (2) where the ECJ refused to review the legality of the EC legislation in light of the DSB's decisions.

In the first case mentioned above, the ECJ dismissed the appeal lodged by two Italian companies, FIAMM and Fedon, claiming compensation for damages suffered because of retaliatory measures ("suspension of concessions") imposed by the United States. The United States was authorized by the WTO DSB to suspend tariffs concessions up to ca. $191.4 million annually as a consequence of the EC import regimes for bananas from African Caribbean and Pacific (ACP) countries, found to be in violation of WTO law; accordingly, the United States raised tariffs to 100 percent (from as low as 3.5 percent) on a number of products, including spectacle cases produced by Fedon and industrial batteries produced by FIAMM. Such producers, having nothing to share with the EC bananas import regime, are often referred to as collateral victims of "trade wars."

The damages allegedly suffered by specific companies and the related jurisprudence of the Luxemburg courts have made more visible the fact that international law may have serious and tangible consequences for private parties. This turns the seemingly highly theoretical question of WTO law's status in the Community legal order into a politically sensitive issue, calling for more detailed scrutiny.

RESEARCH QUESTIONS

Against this background, we seek to advance the debate on the status of WTO law in the EC legal order by addressing the following questions:

* Is it beneficial for the WTO Membership to enhance WTO compliance by introducing decentralized enforcement?

* Is it desirable to unilaterally grant direct effect to WTO...

To continue reading

FREE SIGN UP