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Home Archive for category "EJIL Analysis"

ICJ Indicates Provisional Measures in the Myanmar Genocide Case

Published on January 23, 2020        Author: 

 

Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here. The fact that the Court ordered provisional measures and did so unanimously is obviously a win for The Gambia, and for the Rohingya cause more generally, but its impact should not be overstated. A couple of quick noteworthy points:

(1) The Court adopts a rather flexible approach to the issue of plausibility, and relies mainly on the reports of UN fact-finding commission to support the issuance of provisional measures (on the fact-finding commission reports see in particular Mike Becker’s earlier post). The Court specifically rejects Myanmar’s argument that a more rigorous standard of proof should be required at the provisional measures stage of a genocide claim (para. 56). However that doesn’t mean at all that Gambia will succeed on the merits (it likely won’t, as I’ll explain below).

(2) The Court indicated all but two of the provisional measures that Gambia had requested, but it’s interesting how exactly it did so.

(3) First, the principal measures it indicated, at para. 86 (1) and (2), effectively replicate state obligations under the Genocide Convention, i.e. they do not strictly legally speaking add anything new to the corpus of obligations that Myanmar already has. Second, in indicating these measures the Court omitted the references to more specific acts (e.g. rape or the burning of villages) from Gambia’s request (compare at para. 5) – basically the Court didn’t want to give the impression that any of such specific acts were proven, and the final language is more palatable and diplomatic.

Third, the Court specifically ordered Myanmar (para. 86(3)) to ‘take effective measures to prevent the destruction and ensure the preservation of evidence,’ but again it avoided the more explicit and specific language from Gambia’s request. Fourth, the Court rather laconically rejected Gambia’s (late) request for a specific measure requiring Myanmar to provide access to UN investigators, saying simply (para. 62) that it ‘does not consider that its indication is necessary in the circumstances of the case.’ This is hardly a surprising result, bearing in mind sovereignty concerns and the intrusiveness of such a measure, but the paucity of the reasoning is difficult to justify. Fifth, the Court (rather surprisingly) decided not to indicate the general, innocuous non-aggravation measure, saying that it was unnecessary due to the specific measures that it did indicate (para. 83). Finally, the Court ordered Myanmar to provide it with periodic reports on its implementation of the measures indicated – this has the potential for some bite, but obviously it remains to be seen with what rigour the Court and the parties will observe this requirement.

(4) Bearing in mind how it handled the prima facie jurisdiction analysis in this order, it seems extremely unlikely that the Court will dismiss this case at the jurisdictional stage. I see no reasonable way in which Myanmar could win on jurisdiction, but its contestation of jurisdiction will of course prolong the Court’s examination of the case.

(5) That said, the most likely outcome of the merits stage is still that Myanmar will win, i.e. that Gambia will not be able to provide clear and convincing evidence that genocide (as opposed to crimes against humanity or war crimes) were committed against the Rohingya – basically the same outcome as in the Bosnian and the Croatian genocide cases. The evidentiary requirements were set so high in those cases (in my view rightly so), that they could not be met even with the existence of a fully-fledged international criminal tribunal that could reliably establish the facts. The Court will not have the luxury of the ICTY’s assistance in this case, and once counsel for Myanmar start probing the specific evidence behind the UN fact-finding reports bit by little bit it seems probable that they’ll raise sufficient doubt as to the existence of genocidal intent. But this outcome, even though in my view highly likely, is still many years down the line.

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A Very Quick Look at the Revised Draft Text of the new Agreement on Marine Biodiversity in Areas beyond National Jurisdiction

Published on January 23, 2020        Author: 

 

On 27 November 2019 the President of the Intergovernmental Conference (IGC) on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) issued a revision of the Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The revised draft text will serve as the basis for the next round of negotiations, to take place in March/April 2020. Its primary focus, as the President observes in the accompanying note, is “on streamlining the text” (p. 2), including by way of eliminating certain options which had not received any support during IGC-3, reformulating others, and including new language yet elsewhere. The structure of the revised text remains however “largely unchanged” (p. 2), and indeed, also the length of the document. Finally, the President invites delegations to submit further proposal between 2 January and 3 February, which will be then compiled in a single document ahead of IGC-4. It is important to note that IGC-4 is the last scheduled negotiating session, and the initial goal was to have an agreement adopted by then. However, given the state of the negotiations at the end of IGC-3, it seems extremely unlikely, if not altogether impossible, that this goal can be achieved. This impression is further supported by a quick review of the revised draft. While length need not be a factor, even a quick read-through of the text reveals how little progress has been made, which reflects the outcome of IGC-3. Additionally however, the President has been very careful in “streamlining” the options, in line with the constant reminder from the room that this is a State-driven process, a reminder which also inevitably poses important limitations on the President. However, a process as complex as these negotiations, with many entrenched positions on all the key issues, needs a strong, active guidance from the President and from the working group facilitators, something which for the most part has perhaps been lacking.

So, what is new in the revised draft text? While a thorough review is not possible here, the post will highlight some of the novelties of the text that stood out as I read the draft for the first time. Read the rest of this entry…

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Filed under: EJIL Analysis, Law of the Sea
 

Of Temporal Jurisdiction and Power Struggles in the ICC’s Palestine Investigation

Published on January 22, 2020        Author: 

 

It’s been five years since Palestine made the much-awaited move of requesting the International Criminal Court to investigate crimes allegedly committed by Israel “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Like last month’s decision of the Prosecutor announcing her intention to open an investigation, it was made public in the midst of the holiday season. At the time, Palestine invoked Article 12(3) of the Rome Statute – which gives a state not a party to the Rome Statute the right to accept the jurisdiction of the Court on a one-time basis. A day after it made this request, Palestine acceded to the Rome Statute. 

Shortly thereafter, I re-traced the steps taken by Palestine to gain access to the International Criminal Court up and until December 2014. Those steps were part of a wider effort to expand Palestine’s participation in international bodies, from UNESCO to WIPO and the International Court of Justice (first by appearing in the Wall advisory proceedings, later by bringing a contentious case against the United States).

That Palestine chose to make a declaration under 12(3) and accede to the Rome Statute was intriguing to say the least. The reason behind this double move by Palestine was, I argued, to be found in its impact on the temporal jurisdiction of the Court. Palestine sought to grant the Court with the broadest possible temporal jurisdiction, one that includes crimes committed before and after December 2014. This was a deliberate strategy, which bore its fruits in the Prosecutor’s recent decision.

Becoming a party to the Rome Statute granted the Court’s temporal jurisdiction vis-à-vis crimes committed after the entry into force of the Statute – in this case acts committed after April 1, 2015. The declaration made under Article 12(3) extended such jurisdiction to crimes committed between June 13, 2014 and April 1, 2015. This explains why Palestine was able to request the investigation of acts that occurred prior to April 1, 2015.

Read the rest of this entry…

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Alternative Charges and Modes of Liability in the Latest CAR Case at the ICC – Trouble Ahead?

Published on January 21, 2020        Author: 

 

On 20 December 2019, Pre-Trial Chamber II partially confirmed the charges against Alfred Yekatom and Patrice Ngaïsonna, two co-accused in the first case to arise from the Prosecutor’s investigation into the 2013 conflict in the Central African Republic. Notably, for numerous charged incidents the judges considered that the threshold of “substantial grounds to believe” was not established, mainly with regard to allegations against Ngaïsonna.

However, for the charges that were confirmed for trial, the decision’s treatment of the charged modes of liability raises some curious eyebrows. Two aspects stand out. First, the Chamber’s treatment of alternative charging, and second, its handling of the principal mode of liability under the Rome Statute, article 25(3)(a). Upon closer examination, the Chamber’s interpretation and application of the law in these two aspects represents a sharp turn away from existing jurisprudence, and arguably erodes the coherence of the charges. Consequently, the confirmation decision – which is supposed to provide clarity for the parties at trial – creates more uncertainty by pushing to the Trial Chamber issues that would be better resolved at this stage. This post considers how both of these areas were dealt with by the Pre-Trial Chamber, and how the trial may be affected going forward.

Alternative Charging

In the Document Containing the Charges (“DCC”), the Prosecution charged modes of liability in the alternative, arguing that where evidence establishes multiple legal characterisations of the same facts, “it is appropriate that charges be confirmed under all substantiated modes of liability, and left to the Trial Chamber to determine which of those legal characterisations meets the standard of proof at trial.” (para. 625)

In the present case, the full array of modes were alleged: Ngaïsonna was charged under article 25(3)(a), (c) and (d), i.e., as a direct co-perpetrator, assisting and/or through common purpose liability. Yekatom was charged under article 25(3)(a), (b), (c) and (d), i.e., as a direct and indirect co-perpetrator, ordering, assisting, and/or common purpose liability, as well as command responsibility under article 28 (see pp. 136-164 of the DCC for a helpful breakdown of the alleged modes per incident).

For charges that were confirmed, the judges declined to confirm all of the pleaded modes. For example, with regard to Yekatom, where the evidence established responsibility under article 25(3)(a) or (b), the Chamber repeatedly deemed it “unnecessary” to subsequently address responsibility under (c) or (d). (see e.g., paras. 99-100)

However, the rejection of (c) and (d) appears conceptually misplaced. If the criminal contribution of a suspect is deemed to be evident in the sense of article 25(3)(a), then such a contribution could likewise be legally characterised in the sense of (c) or (d), as “assisting” or as “any other contribution.” The Chamber does not engage with the consistent jurisprudence which has permitted alternative charging of modes, nor does it refer to the Chambers Practice Manual (updated recently in October 2019) that expressly endorses it, and which warns – as academics and dissenting judges previously have – of the spectre of Regulation 55:

In the charges, the Prosecutor may plead alternative legal characterisations, both in terms of the crime(s) and the person’s mode(s) of liability. In this case, the Pre-Trial Chamber will confirm alternative charges (including alternative modes of liability) when the evidence is sufficient to sustain each alternative. It would then be the Trial Chamber, on the basis of a full trial, to determine which one, if any, of the confirmed alternative is applicable to each case. This course of action should limit recourse to Regulation 55 of the Regulations, an exceptional instrument which, as such, should be used only sparingly if absolutely warranted. In particular, it should limit the improper use of Regulation 55 immediately after the issuance of the confirmation decision even before the opening of the evidentiary debate at trial. (emphasis added) (Chambers Practice Manual, 2019, para. 67).

With respect to Yekatom, the Chamber also declined to confirm article 28, the mode of command responsibility, noting that “the narrative of the relevant events as emerging from the available evidence is such that Yekatom’s conduct resulted in the realisation of the objective elements of the crimes, rather than only consisting in the mere failure to prevent or repress crimes committed by other persons.” (para. 58) Again, the Chamber’s approach here is conceptually askew. A commander can actively engage in criminal conduct, while also failing to repress the crimes of their subordinates, or to later refer them to the competent authorities for investigation. This logic was noted by the Pre-Trial Chamber in Ongwen, where, faced with a similar situation, nevertheless retained article 28 on the docket (Ongwen Confirmation Decision, para. 147). Read the rest of this entry…

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Mistake of Fact in Putative Self-Defence Against Cyber Attacks

Published on January 17, 2020        Author: 

I am glad that Marko has taken on the task of tackling the issue of mistakes of fact in international law, as I completely agree that it is a very important yet so far largely overlooked aspect, surprisingly so. While I’d mostly approve of Marko’s deliberations and conclusions, I wanted to add a brief point that I came across while doing research for my soon-to-be-published book on remedies in cyberspace that might be suitable to further inform this important debate. Given the technical features of cyber infrastructures, the issue of mistakes of fact in relation to measures taken in self-defence is even more critical in this context.

This is because a state might of course not only factually err in regard to the existence of an armed attack pursuant to Article 51 UN Charter, but just as well in relation to its author. This issue has come up more recently in connection with armed attacks in or through cyberspace and the widely discussed attribution problem. An imminent crisis caused by a cybersecurity incident as the result of a malicious cyber operation that indeed leaves “no choice of means, and no moment of deliberation” is easily imaginable. At the same time, given the persistent difficulty to identify an operation’s source and agent with reasonable certainty reasonably fast, it is equally easily imaginable that mistakes will happen – leading to a forceful response in putative self-defence against the wrong target (for instance a critical server in an uninvolved third country that had been employed in order to carry out the malicious operation). What should be the legal consequences of such a mistake of fact?

Read the rest of this entry…

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Mistakes of Fact When Using Lethal Force in International Law: Part III

Published on January 15, 2020        Author: 

 

To briefly recapitulate our examination of mistake of fact when using lethal force in various sub-fields of international law: such a doctrine is, in its purely subjective form, black letter law in international criminal law. It is also established (even if not labelled as such) in international human rights law and (somewhat less clearly) in international humanitarian law. Both IHL and IHRL would however require the mistake to both honest and reasonable to be able to preclude liability. Both IHL and IHRL contain explicit precautionary and prophylactic rules whose role, in part, is to determine the bounds of reasonable and hence permissible error (e.g. with respect to target verification).

As we have seen, the mistake of fact question is most fraught in the jus ad bellum. That said, as a formal matter, even if one thought it to be desirable, it would be difficult to argue that a jus ad bellum-specific mistake of fact doctrine was customary law. I cannot think of any state but the US that has invoked such a doctrine, even implicitly. (Any such examples known to readers would be most welcome.) And when the doctrine was invoked, as with the Iran Air Flight 655, it certainly did not attract widespread acceptance by other states. There is enough ambiguity in state reactions to the downing of that aircraft, especially in the atmosphere of the Cold War, that one cannot categorically exclude that such a rule could exist. But it seems unlikely that it does. And if it does, it cannot be the purely subjective one from ICL, which would be even more inappropriate in the jus ad bellum context than in IHL and IHRL.

Bearing all this in mind, let us turn to the downing of Ukraine International Airlines Flight 752 over Tehran, which is as we have seen eerily reminiscent of the shooting down of Iran Air Flight 655 by the USS Vincennes. There are many parallels between the two incidents, not least that they both involve the same two states, if on different sides of the story, and that both cases raise questions of mistake of fact. What is very different is the wider context – the Cold War warped anything it touched. And I think it fair to say that the socializing effect of international law is somewhat greater today than it was then.

Thus, states like Ukraine and Canada have already used legal language vis-à-vis Iran. President Zelenskyy stated that:

Iran has pleaded guilty to crashing the Ukrainian plane. But we insist on a full admission of guilt. We expect from Iran assurances of their readiness for a full and open investigation, bringing those responsible to justice, the return of the bodies of the dead, the payment of compensation, official apologies through diplomatic channels.

Prime Minister Trudeau similarly stated that ‘Iran must take full responsibility’ for its actions.

And this is exactly what Iran should do. It shouldn’t just listen to these other states invoking its responsibility. It should listen to the voice of its own ambassador, when he was speaking in the Security Council chamber to reject the US self-defence justification for shooting down IR 655:

We believe that a responsible Government, under the present circumstances when it has caused the destruction of a civilian airliner and its 290 passengers, must urgently take three steps: It must apologize to the families of the victims and to the peoples and the Governments concerned ; it must accept full responsibility for the downing of the airliner and offer reparation on the basis of its legal and moral liability; and it must reassess and revise policies which led to the downing of the plane and the murder of its innocent passengers. (S/PV.2821, 6)

An equally intriguing parallel is that with McCann. Indeed, I would argue that it is precisely human rights law – largely absent from the discussions of the destruction of IR 655, aside from a single reference by (of all people) the ambassador of Syria – that is the body of law that best fits the downing of the Ukrainian airliner. The gravest violation of international law here is not that of the Chicago Convention, but that of the human right to life, the wrongfulness of which could, unlike with the Chicago Convention, never be precluded by jus ad bellum self-defence.

Just like the SAS soldiers in McCann, the Iranian air defence officers most likely honestly believed that they had to act to deflect a threat to human life. Just like in McCann, they were wrongly told that such a threat was certain – that US cruise missiles would be incoming. Just like in McCann, they had little time to deliberate. And just like in McCann, the violation of the right to life stems not directly from the soldiers’ decision to use lethal force, but from systemic background failures of higher Iranian authorities.

Had Iran closed its airspace for civilian traffic that evening, knowing full well that hostilities with the US might easily escalate, the plane would never have been shot down. Had Iran properly coordinated its air defences with civilian air traffic control, the plane would never have been shot down. Had Iran properly trained its forces at various levels, the plane would never have been shot down. Thus, even if Iran’s mistake of fact that resulted in the destruction of the aircraft was honest, it was not reasonable, and as such it would bear state responsibility for violating the victims’ human rights. And that violation is compounded by the initial attempts of Iranian authorities to obstruct the investigation and cover up the cause of the crash, from which they have thankfully desisted, but which nonetheless resulted in a violation of the positive obligation to effectively investigate unlawful deaths.

This is therefore how Iran should frame the reparations it provides – not as ex gratia charity payments, not (solely) as compensation due to states such as Ukraine or Canada, but as just satisfaction to those individuals whose rights it violated. In doing so, Iran should compensate its own nationals in the exact same way as it compensates foreigners, as equals in dignity. And it needs to provide sufficient assurances to the international community that a mistake such as this one, honest though it may have been, will never be repeated.

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Mistakes of Fact When Using Lethal Force in International Law: Part II

Published on January 15, 2020        Author: 

 

If a state believes that it is the target of an ongoing or imminent armed attack and uses force to repel that attack, but it later turns out that it was mistaken and that there either was no such attack or that there was no necessity to respond to it, is that use of force in putative self-defence ipso facto a violation of Article 2(4) of the Charter? Or would the state’s mistake excuse it?

There are three possible options in answering this question:

  • An honest mistake of fact would excuse the state, as in ICL;
  • An honest and reasonable mistake would excuse the state, as in IHL and IHRL;
  • No mistake, however honest and reasonable, would excuse the state – it violated the prohibition on the use of force, and would have to provide reparation for any injury caused.

Any one of these options is plausible in principle. In particular, I do not think that the text of Article 51 of the Charter is entirely dispositive of the issue.

It’s true that Article 51 permits self-defence ‘if an armed attack occurs/ dans le cas où un Membre des Nations Unies est l’objet d’une agression armée’ and that one could therefore say that the existence of an armed attack is an objective fact and a necessary predicate for any self-defence claim. But we routinely do far greater violence to far clearer texts than it would take to incorporate a mistake of fact doctrine into the law of self-defence. The big question is whether we should, not whether we could.

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Mistakes of Fact When Using Lethal Force in International Law: Part I

Published on January 14, 2020        Author: 

 

The tragic shooting down of the Ukrainian airliner over Tehran last week, which Iran has admitted to after several days of denial, has led me to think about a set of issues that was already on my mind when we were discussing the legality of the US strike on Soleimani. How exactly does international law deal with situations in which state agents use lethal force and do so under the influence of a mistake or error of fact? For example, when an Iranian air defence officer shoots down a civilian airplane thinking that he was shooting down an American cruise missile; or, when a state uses force against another state thinking, on the basis of imperfect intelligence information, that is the victim of an ongoing or imminent armed attack, and it later turns out that there was no such attack. Does international law provided reasonably consistent, coherent and fair rules to address such situations? To what extent can we generalize about such rules, and to what extent are they fragmented and context-specific?

Domestic legal systems have long dealt with such issues. Perhaps the most common such scenario – in some countries all too common – is the use of lethal force by the police against a person whom the officer concerned mistakenly believed was posing a threat to others, but who in fact posed no such threat.

Most domestic systems that I am familiar with have mistake of fact rules or doctrines in their criminal laws. Such rules, whether grounded in statute or in case law, often distinguish between honest mistakes, based purely on the subjective belief of the person using force, and reasonable mistakes, assessed on the basis of some kind of objective standard of behaviour. In most domestic systems mistake of fact can preclude criminal liability in some circumstances, and mitigate punishment in others. But municipal laws are rarely as clear with regard to civil, delictual responsibility in tort, which is the closer analogue to state responsibility in international law.

I can’t claim to have done genuinely comprehensive research on this topic, but it seems to me that there is a significant gap here in the international legal literature. How exactly do we handle mistakes of fact in the various different sub-fields of international law, especially when the mistake involves uses of lethal force? And are we content that whatever solutions we have come up with are the right ones?

This three-part series of posts is not even an attempt at filling this gap – think of it more as a conversation starter. I would be most grateful to readers for additional examples in the comments or for any other thoughts they might have. In this first post, I will briefly examine how mistakes of fact in using lethal force are addressed in international criminal law, international humanitarian law, and international human rights law. My second post will look at mistakes of fact in self-defence under the law on the use of force (jus ad bellum), examining as a case study the 1988 downing of Iran Air Flight 655 by the USS Vincennes. The third and final post will then offer some conclusions and some tentative thoughts on the downing of Ukraine International Airlines Flight 752 over Tehran.

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The Killing of Soleimani, the Use of Force against Iraq and Overlooked Ius Ad Bellum Questions

Published on January 13, 2020        Author: 

 

As most people know by now, the US killed Qassem Soleimani, head of the Iranian Quds force, in a drone strike on 3 January. Most commentators seem to agree that Soleimani’s killing was unlawful, but one issue has received less attention: the legality of using force against Iraq. The strike occurred in Baghdad, killing not only Suleimani but also five Iraqi nationals, including the leader and members of Kata’ib Hezbollah. This post examines the legality of the use of force against Iraq from a ius ad bellum perspective, arguing that a putative US claim to self-defense against Iraq stretches the doctrine of ‘unable or unwilling’ to breaking point.

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Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

Published on January 13, 2020        Author: 

 

Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its functions.

As is well known, this paralysis was triggered by the United States (US)’ consistent veto on the appointment of new appellate judges, justified on grounds of the court’s ‘overreach’, its undue reliance on ‘precedent’, and its alleged disregard for the rules set forth under the Dispute Settlement Understanding (DSU). In November 2019, the US doubled down by threatening to freeze the WTO’s 2020 budget absent draconian cuts to the AB’s funding. Predictably, this prompted the vehement reaction of numerous other Members, which accused the US of holding the WTO appellate system hostage of its own concerns.

Much has been written about this institutional crisis. Yet, the notion of ‘crisis’ deserves some further… critical examination. The very utterance of the word is seldom value-neutral, but rather reflects the perceptions, the preoccupations, and sometimes the agenda of the utterer. If it is indeed true that the World Trade Court is at a critical juncture, then it bears asking: critical for whom? Who are the actors involved in the struggle? How do they articulate their claims and pursue their strategies? To what ends? And who stands to gain and who to lose from the present impasse?

The WTO as a conflictive socio-professional field

Scholars tend to appraise the ongoing conflict in either of two ways. Some consider it as a normative disagreement over the appropriate boundaries of WTO adjudication vis-à-vis the regulatory authority of Members. This narrative typically focuses on the extent of the AB’s implicit powers, the role of past jurisprudence in its legal interpretations, the viability of alternatives to the appellate process, and the like. Others conceive the conflict as part of a struggle for political supremacy against the evolving landscape of international economic relations. This narrative tackles issues like US-China trade wars, the breakdown of multilateralism, the resurgence of sovereigntist economic policies, etc.

To complement these accounts, I suggest that the ongoing struggle surrounding the AB reflects a confrontation between competing socio-professional groups within the WTO legal field. The multilateral trade regime is not only a legal or a political construct. It is also the site of a contest among social actors endowed with unequal professional and technical capital, who compete for supremacy in the system. To prevail in this struggle is to secure one’s authority, impose one’s vision of the law as the dominant paradigm—in one word, to control WTO dispute settlement. Exploring the interplay and power relations among the various socio-professional actors involved in WTO adjudication is, therefore, key to understanding understanding the tensions that currently agitate the field. Read the rest of this entry…

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