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Addressing new frontiers in international law

International criminal tribunals are in trouble. Lines are blurring between international legal systems. It’s increasingly difficult to balance the benefits of open trade with the negative impact of its volatility. Rhetoric around border and migration control is vociferous. At the American Society of International Law’s annual meeting (30 March – 2 April 2016), academics and practitioners will address the theme ‘Charting New Frontiers in International Law’. In preparation for the meeting, we asked some of our authors to share their thoughts.

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“The most significant challenge facing international criminal law is the increasing — if unwelcome — irrelevance of the international criminal tribunals. The ICTR and SCSL have shuttered their doors; the ICTY and ECCC are on their last legs; and the STL has an exceptionally limited mandate. In a few years, therefore, the ICC will be the only accountability game in town. That’s an unsettling prospect, given the Court’s struggle to become more than an international tribunal for prosecuting rebels and deposed leaders of states in the Global South. It is anything but clear that the ICC will be able to solve its structural problems, particularly its lack of funding and enforcement mechanisms. So international criminal law’s future may well rest, for better or for worse, on an upsurge in national prosecutions of international crimes. Credible examples of such prosecutions are not particularly common, but they do exist: the prosecution of Rwandan genocidaires by a variety of states, Hissene Habre’s prosecution in Senegal’s Extraordinary African Chambers, etc. Moreover, there are encouraging signs that regional tribunals may step in to (partially) fill the void left by the international tribunals, as indicated by proposals to create a criminal chamber at the African Court of Justice and Human Rights. Indeed, if the international community genuinely cares about accountability, it should spend more time supporting national prosecutions and regional institutions, and less time insisting that the ICC serve as a panacea for all of the world’s ills.”

Kevin Heller is Professor of Criminal Law at SOAS, University of London. He is co-editor of The Hidden Histories of War Crimes Trials.

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“To me, the biggest challenge in WTO law is the growing phasing out and blurring of frontiers between international legal systems. Commerce and trade legal systems have long been ignored by generalists in public international law. The 1996 WTO Appellate Body statement that the GATT/WTO should not be read in ‘clinical isolation from public international law’ has enhanced the connection between international trade and public international law. In doing so, it expanded further the ‘trade and…’ debate, opened doors between disciplines, and favoured rich cross fertilization between legal systems. Clearly, WTO law contributes to the evolution of public international law. It is the busiest international tribunal in the world, and produces a rich and exciting body of jurisprudence that sheds light not only on trade, but also on other areas of international law, such as environmental law and intellectual property.

“But there is more. Some of the old distinctions between legal systems are becoming blurred. For example, recently the parties to CETA proposed establishing a new world investment court based on the WTO model. Some are already suggesting that the WTO AB could hear appeals directly from investment arbitration, which would necessarily lead to important cross-fertilization, and increased osmosis between the trade and investment legal systems. The distinctions between the two legal systems may eventually disappear, resulting in a convergence that is creating an authentic system of general international (economic) law. And this is just a beginning…”

Dr Gabrielle Marceau is Counselor in the Legal Affairs Division of the WTO, and Associate Professor at the Law Faculty of the University of Geneva. She co-authored the article “Experts in WTO Dispute Settlement,” published in the Journal of International Dispute Settlement.

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“The greatest new issue in world trade law is the return of an old problem – the regulation of trade in commodities. As commodity prices have soared and collapsed over the past 10 years, we are faced with a familiar question; how can the harmful effects of trade in commodities be reconciled with the benefits of open trade? This has become pressing as a number of existential challenges facing the international community are intrinsically tied to trade in commodities: food security, poverty alleviation, labour rights protection, gender equality, access to education, macro-economic stability, environmental protection, and biodiversity. At a time of particular price volatility, each is directly affected by trade in commodities, and the lack of attention to the international regulation of commodities (both as primary goods and in financial markets) exacerbates the challenges faced by States. Yet responses are hard to envisage, especially when our trade system is premised on treating commodities as any other good. Though neither the WTO nor the international community more broadly has yet responded to this challenge comprehensively, the role foreseen by the WTO in supporting the UN Sustainable Development Goals may offer some hope. However, with sparse agreement at the WTO to alter or amend the covered agreements, it will likely be for trade lawyers to find ways in which the treatment of commodities can be accommodated within WTO law as it stands.”

Gregory Messenger is Lecturer in Law at the University of Liverpool. He is the author of The Development of World Trade Organization Law: Examining Change in International Law.

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“It is perhaps ironic that the Annual Meeting should be entitled ‘Charting New Frontiers’ at a time when the reassertion of old frontiers is gaining prominence across continents. Political discourse around the world has focused upon topics such as a wall between the United States and Mexico, the dismantling of the open borders arrangement within the EU, or the extreme risks being taken by those wishing to cross from Africa and the Middle East into Europe. One casualty of this new focus on frontiers could be international trade and investment treaties, which seek to break down the old frontiers and bring the world closer together. The legal and political theories underlying the growth in bilateral and regional trade and investment agreements are the subject of much debate. On the one side stand those who assert that such treaties are responsible for devastating local industries and creating a race to the bottom in environmental, health, and employment standards. On the other side are those who say that international trade creates wealth for all, promotes innovation, contributes positively to the development of living standards and fosters world peace by bringing nations together. Over the past era the upper hand has been held by those who supported free trade but there are indications that the tide is turning. As a result the new frontiers may be no more than the old frontiers reasserted, more strongly than ever before.”

Matthew Weiniger QC is Global Co-Head of International Arbitrations at Linklaters LLP, and co-author of International Investment Arbitration: Substantive Principles.

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“In many respects, children’s rights itself is still a new frontier. Although the first international instrument on children’s rights – the Geneva Declaration of the Rights of the Child – was adopted in 1924, adults are still learning to think of children as rights holders. The liberal idea that rights reflect and protect individual autonomy fits awkwardly with how many of us understand and experience children, especially young ones. The evolving nature of children’s capacities – reflected in emerging research on both early childhood and brain development – demands that we think of children’s rights differently than we do of adults’. But how we balance children’s emerging autonomy with their need for protection remains a challenge. Children themselves frequently have thoughtful insights into the human rights challenges they confront (and potential solutions). Yet the traditional view of children, typified by adage that they should be ‘seen and not heard,’ discounts the value of children’s perspectives. Children should be understood as partners in the human rights movement. Ultimately, children’s rights – and educating children about their rights and their responsibilities to respect the rights of others – are essential to building just societies. We cannot expect young adults with no exposure to human rights concepts to assert their rights. Human rights education must start early in life.”

Jonathan Todres is Professor of Law at Georgia State University College of Law and the co-author of Human Rights in Children’s Literature: Imagination and the Narrative of Law. His research focuses on children’s rights, child exploitation, and human trafficking.

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Featured image credit: Chama River in New Mexico by JessicaFender. CC0 Public Domain via Pixabay.

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  1. […] on international law and children’s rights in Oxford University Press’s March 28 blog “Addressing New Frontiers in International Law.”  “Although the first international instrument on children’s rights – the Geneva […]

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