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Optimal Protection of International Law

Optimal Protection of International Law Navigating between European Absolutism and American Voluntarism

Name: Optimal Protection of International Law
Brand: Cambridge University Press
SKU: 9781107406926
Price: 390.78 HKD
Availability: OutOfStock
Author: Joost Pauwelyn
ISBN: 9781107406926

By Joost Pauwelyn

Cambridge University Press August 2012

Specifications

ISBN-13: 9781107406926
Publisher: Cambridge University Press
Publication: August 2012
Format: Paperback , 270 pages
Jurisdiction: European Union, U.S. ? Countri(es) for reference only

Details

This book was first published in 2008. Assume, for a moment, that the necessary tools are available to induce or even force states to comply with international law. In such a state of affairs, how strongly should international law be protected? More specifically, how easy should it be to change international law? Should treaties be specifically performed or should states be given an opportunity to 'pay their way out'? In the event of states violating their commitments, what kind of back-up enforcement or sanctions should be imposed? Joost Pauwelyn uses the distinction between liability rules, property protection and inalienable entitlements as a starting point for a new theory of variable protection of international law, placed at the intersection between 'European absolutism' and 'American voluntarism'. Rather than undermining international law, variable protection takes the normativity of international law seriously and calibrates it to achieve maximum welfare and effectiveness at the lowest cost to contractual freedom and legitimacy.

• In addressing a general feature of international law, such as how strongly it should be protected, it appeals to general international lawyers as well as specialists

• Uses law and economics criteria to make assessments, moving away from the often ideological debates between advocates and critics of international law

• Makes analogies with domestic law and focuses on non-legal or informal remedies, thus crossing boundaries between legal theory, philosophy and sociology

Table of cases	viii
Table of treaties	xiii
Table of international documents	xvi
Acknowledgments	xviii
Abbreviations	xix
Foreword	xxv
Introduction	1
1 Overview and relevance of the analysis	5
2 The two extremes of European absolutism and American voluntarism	16
3 Allocation, protection and back-up enforcement of entitlements	26
1 The basic model, its advantages and limitations	26
2 Step 1: allocation of entitlements	30
3 Step 2: protection of entitlements	32
4 Step 3: back-up enforcement	36
5 A framework for the protection of international law entitlements	38
4 How should international law entitlements be protected?	45
1 The argument for a default rule of property protection	46
(a) Contractual freedom and welfare maximization	47
(b) Property protection requires less intervention	49
2 When to protect entitlements as inalienable	50
(a) Significant externalities	51
(b) Moralisms and incommensurability	52
(c) Paternalism	54
3 When to protect entitlements under a liability rule	55
(a) Hold-out	56
(b) Free-load	59
(c) High transaction costs	62
4 Arguments for a lower level of protection in international law	66
(a) The need for flexibility to attract participation and prevent exit	67
(b) The consent rule as well as uncertainty may require incomplete contracting and flexibility	68
(c) Legitimacy concerns	72
5 Arguments for a higher level of protection in international law	75
(a) Absence of collective valuation	77
(b) The cost and possible errors of collective valuation	79
(c) International entitlements as unique goods	83
(d) Stability and the need to make credible commitments	85
(e) Inequalities between states	90
(f) States may not internalize costs or maximize welfare	93
(g) States are not unitary actors	98
6 A matrix to decide on how to protect international law entitlements	102
5 How are international law entitlements currently protected?	107
1 International law is, in principle, not inalienable	108
2 International law is, by default, protected by a property rule, not a liability rule	111
3 An evaluation of inalienability in current international law	117
(a) The need for a more objective analysis	117
(b) Collective obligations through the lens of externalities, incommensurability and paternalism	122
4 An evaluation of liability rules in current international law	128
(a) Cross-border environmental damage	130
(b) Liability rules in the GATT/WTO	134
(c) Investor protection under NAFTA and BITs	145
6 Back-up enforcement in international law	148
1 The puzzle of property protection backed-up by “mere” compensation and proportional countermeasures	150
(a) Good reasons to limit countermeasures to 1:1 retaliation	157
(b) How 1:1 retaliation can achieve property protection: the “kicker” of community costs	163
(c) Community costs in a property regime as opposed to a liability regime	172
(d) How 1:1 retaliation can achieve property protection: the hidden force of 1:1 retaliation itself	178
2 The puzzle of jus cogens and collective obligations benefiting from the weakest form of back-up enforcement	185
(a) Default rules of back-up enforcement for community obligations	187
(b) An assessment: be careful what you wish for	194
7 Conclusion	198
References	207
Index	220