Posts by Jenna Meth
Problems with the patchwork quilt? Examining inconsistency in investor-state arbitration
International investment arbitration has evolved dramatically throughout the last two decades.[1] In this time, we have witnessed the birth of investor-state arbitration and the “import[ation] of the commercial arbitration model into the realm of treaty-based investment disputes”.[2] In other words, investors can now bring claims directly against host states through treaty mechanisms such as Chapter 11 of the North American Free Trade Agreement (NAFTA).
Unlike the World Trade Organization’s (WTO) dispute settlement system, however, the substantive and procedural law applicable to investment disputes is not formalized in a manner analogous to the WTO Dispute Settlement Understanding (DSU). Instead, international investment arbitration is a mixed system; one that is fragmented and that “sits uneasily between public international law jurisdictions and domestic judicial systems”.[3]
Perhaps this uncomfortable mélange is a necessary characteristic that ensures the dispute resolution process is “neutral and effective”.[4] The existence of such a “broad network of interrelated rights”, however, creates a “patchwork”.[5] As Susan D. Franck notes:
“[…] decisions about issues with economic and political consequences are resolved in private before different sets of individuals who can and do come to conflicting decisions on the same points of law”.[6]
This patchwork creates uncertainty about the meaning of investment treaty rights in public international law,[7] which is evidenced by inconsistencies in investor-state arbitral jurisprudence[8] – and…
Regional trade agreements, neither building blocks nor stumbling blocks: dismantling a tired dichotomy
The proliferation of regional trade agreements (RTAs) has continued unabated since the early 1990s.[1] In December 2008, the World Trade Organization (WTO) had been notified of 421 RTAs.[2] “There is a serious and long-lived tension between seeking freer trade in a non-discriminatory manner through the [General Agreement on Tariffs and Trade] 1994 and the other WTO Agreements, and by way of regional trade agreements,” observes Professor John H. Jackson.[3]
In the eyes of many, regionalism and multilateralism stand stubbornly pitted against one another, despite implicit recognition of the “desirability” of RTAs in Art. XXIV:4 of the 1947 version of the General Agreement on Tariffs and Trade (GATT).[4]
Since the establishment of the Committee on Regional Trade Agreements (CRTA) in 1996, the WTO has scrambled to find ways to effectively control the impact of RTAs. This futile mission to tighten RTA regulation has been driven by a persistent fear of trade diversion, as well as by the assumption that regionalism—and the agreements springing from it—is subordinate to the multilateral regime.
WTO regulation of RTAs has evolved since 1947, notably with the introduction of the 1994 Understanding on the Interpretation of Article XXIV of the GATT 1994 and the creation of the Transparency Mechanism for RTAs in 2006. These regulations remain however, narrow and ambiguous. Article XXIV thus continues its long history of…
Sliding Through the Cracks: U.S. Private Military Contractors and International Humanitarian Law
“Some of the newest armed non-state parties operating in unstable states and conflict situations come from an unusual source: the private sector.”[1]
Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan.[2] “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.”[3] Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.
“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.”[4] A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies[5] to performing “enhanced interrogations” – a.k.a. torture[6] – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.[7]
This growing involvement in core…
A Trend Toward the ‘Humanization’ of Conflict Law?
Israeli Targeted Killing and the relationship between international humanitarian law and human rights
The modern laws of warfare were born in the nineteenth century from Europe’s fears “about the escalating severity of war”[1]. As the decades passed, war’s means, methods, aims and tactics have changed. Suicide bombers that melt into the civilian population have replaced ordered battalions of uniformed soldiers. Strikes from unmanned Predator drones have supplanted direct confrontations on the battlefield. Wars are fought not only against states, but also against colonial domination, racist regimes and abstract social phenomena, most notably the “war on terror”.
