International Public Law Framework

Treaties and Customary International Law

1) Treaties – VCLT

a. Treaty Making

b. Treaty Obligationsi. Performance

ii. Scope

c. Treaty Interpretation i. Principles that can be included (highlighted part)

ii. Sources:1. Equity2. Judicial Decisions3. Writers4. Hierachy of sources and Jus Cogens

d. Invalidity, Suspension and Termination of Treaty

i. Invalidity1. Error 2. Fraud3. Coercion 4. Conflict with peremptory norm in IL

ii. Termination or Suspension1. Consent2. Reasponse to breach3. Response to Impossibility 4. Auto Term conflict with Peremptory Norms

iii. Consequences of Termination or suspension1. See articles 70 to 72

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2) Customary International Law

a. Theorists: Positivist v. Hans Kelsen

b. Two Basic Elements

i. Material Facts1. Duration

2. Consistencya. Asylum Caseb. Fisheries Case

3. Repetitiona. North Sea Continental Self case

4. General – number of participating states a. Military and Paramilitiary in Nicaraqua case

5. Failure to act

ii. Subjective Belief – opinion juris 1. Subjective element 2. Amount to settled practice 3. Issue of local or regional customs 4. Treaty v. Customary International Law

a. What is evidence of this? (Highlighted page 20)

3) Exceptions to Universality Customary IL

a. Regional Customary International Lawi. Asylum Case

ii. Passage over Indian Territory Protugal v. India

b. Persistent Objectors

4) Other sources a. General principles of Law

i. Comparativismii. Categorist School

b. Unilateral Declarationsi. Intent to bind itself

ii. Subject matter of the decleration is readily amenable to more usual process of negotiation and conclusion of an agreement between states

c. Soft laws and other influences on the developments of IL

Article 53 of VCLT – Jus Cogens Articulation: For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

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d. Concepts of Jus Cogens Norms and Ega Omnes Obligations

International Legal Personality

1) Prerequisites of Statehood in IL – Convention on the Rights and Duties of States a. Permanent Populationb. Defined Territoryc. Effective Governmentd. Capacity to enter into relations with other states

2) Additional element of statehood: recognition of other states a. Recognition of statesb. Recognition of Governments

3) Membership in the UN – Articles 3 and 4 a. Peace-lovingb. Be a statec. Accept obligations in UN Charterd. Be willing and able to carry those obligations out

4) Changes in States and Governments

a. Succession and Treaties i. Colonial Boundaries – uti posidetis juris

ii. Non-Colonial Boundariesiii. Explicit adoption (not mere decleration) of treaty (Article 9 + Article 24) or

participation (Artcile 17) iv. In force in old state unless purpose in compatable (Article 15)

5) Rights and Duties of States a. Right to Sovereignty b. Right to Sovereignty Equality c. Duty of non-interventiond. Duty to respect ILe. Protection of international Human Rightsf. Self Determination

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States and Territory

1) Jurisdiction over Land a. State Territory: land base, subsoil below, airspace abov, lakes and rivers (inland waters) and

territorial seai. Territorial Sovereignty – Definition page 34

ii. Colonial Doctrines

iii. Doctrines of Discovery1. Effective Occupation – requires continuous and peaceful display of state functions

accompanied by the requisite intent toestablish permanent and exclusive control.a. Nicaragua v. Columbia – list of things, and what carried the day

b. Denmark v. Norway – legislation+ nature of the land has to be low population and inaccessible character of the uncoloniezed parts

c. France v. Mexico – when are unibbited at the time of contact possession must be considered accomplished

i. Caveats 1. Distinction between discovery and effective occupation –

depends on the nature of the land in question

2. Effective occupation as a basis of sovereignty

3. Indigenous people a. Q=Western Sahara, Advisory Opinion – agreements

with local inhabitants comprising of tribes or peoples having a social and political organization consiutes derivate roots of title - not terra nullius

b. Antarctica – example

2. Prescription a. The 4 things needed for possession by prescription to mature into title

i. Island of Palmas Case – obtained through peaceful, open and public continues possession

ii. Botswana v. Namibia – no prescription argument because no evidence tribe occupied a titre de souverain. Agricultural use of land does not indicate this type of occupation

1. Titre de souverain: exercising state authority on behalf of the state in question

iii. Cameron v. Nigeria: no acquiescence in the abandonment of its title in the area in favour of Nigeria

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iv. Canadian Artic : One way around it is occupation by the inuit people

3. Subjugation a. Conquest and annexation

4. Conquesta. Two elements + Articles 2(3) and 2(4) of UN Charter got rid of this

5. Self-Determinationa. Definition + Article 1(2) and 55 of UN Charter + Vienna Declaration of

1993

b. Suggestion Self-determination reaction to IL colonization

i. Legal Consequences for states – Nambia (pg 38): the court affirmed that self determination expands to all territories whose people have not yet attained full measure of self government.

ii. Western Sahara, advisory Opinion – same as above + the application of self determination to a speedy end of colonial situations

1. See comments on 3 GA resolution in CAN for more than one process of decolonization for non-self governing territories:

a. Emergence of a sovereign independent state (GA res. 2625

b. Free association with an independent state or (GA res. 1541)

c. Integration with an independent state (GA res. 1541)

iv. East Timor Case: The ergo nomes nature of self determination is different from the rule of consent to jurisdiction, The court cannot rule using one to overrule the other.

v. Israeli Wall in Palestine – can’t do to self-determination

Indigenous peoples and self- Determination: UNDRIP Articles in CAN + International Labour Organization Convention articles 14 and 15 speak of such right of determination

i. Secession Reference – Definition of People in SD

2) Jurisdiction over Water - UNCLOS a. Establish Baseline – See CANb. Territorial Sea 12 NMiles out is Territorial Sea (Article 3)c. International Straits – used for navigation,– narrow passages on ocean, but not if exists through an

area of high seas: 1) Continuous and expeditious tansit, 2) no express condition of innocence 3) no right of suspension or prevention (Article 34, 36 and 38 – See CAN)

i. Example: Northwest Passaged. Archipelagic Waters Between islands… (Article 47)e. Contiguous Zone – mas 24 NM from baseline, must be claimed, Scope of jurisdiction and fiscal

laws like, immigration laws, fiscal laws, sanitary laws (Article 33)f. Exclusive Economic Zone: 200 NM from baseline, bust be claimed, not sovereignty, see rights

and duties of state – issues of fisheries zones – Part V of the UNCLOS

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g. Continental Shelf - 200 NM from Baseline h. High Seas Everything beyond the above – Res communis area – main freedoms and limits see

CANInteraction Between International and Canadian Law

1) Canadian Domestic Law’s Treatment of Treaties a. Dualist Approach v. Monist Approach

i. Capital Cities Communications v. CRTC: international agreements do not bind Canadian law unless it is in the act or there is a gap to fill. There is a CL presumption that the legislature does not intend to break an international treaty

ii. Francis v. Canada: Certain treaties, treaties of peace can be used to interpret domestic legislation without it being implemented through parliament

2) Canadian Legislative Jurisdiction and Treaty Transformation a. Labour Conventions Case Treaty implamentation is subject to the division of powers

3) Direct significance of Treaties in Canadian law

a. Significance of a Legislatively Implemented Treaty i. National Corn Growers Association v. Canada: at the preliminary stage of

determining if the domestic legislation contains an ambiguity a treaty can be used to fill in the gap.

1. Definition of a gap: latent ambiguity in the text of the statute even if this was “clear in itself”

ii. Puspanathan v. Canada: where the propose of a provision was to implement a convention, international interpretation schemes apply. The treaty’s purpose and context has to be viewed in this analysis.

b. Significance of Legislatively Unimplemented Treaty i. Baker v. Canada: ratification of the Convention on the Rights of the Child, Dube’s

usage of the values reflected fro convention to help inform a contextual approach to statutory interpretation and judicial review.

ii. Merk Fross Canada Ltd. v. Canada: Do not have to adopt the treaty definition of “trade secrets”

iii. R. v. Hape – presumption of conformity:1. Legislation is presumed to act consistent with treaties it sings on to2. Presumption is rebuttable tho, must be done expressly

4) Canadian Domestic Law’s Treatment of Customary International Law a. Monist Approach of Customary International law – Doctrine of Adoption/ Presumption of

conformity applies to customary IL which automatically applies.

5) Relevance of International Law in Interpreting the Canadian Charter a. Minimum Content: the charter should generally be presumed to provide protection at least as

great as that afforded by similar provision in international human rights documents Canada has ratified (Slaight Communications Inc. v. Davidson). But in obiter in Suresh v. Canada the court stated that s, 7 of the charter may not prohibit deportations in exceptional circumstances so while informing, but not controlling interpretation.

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b. Maximum Consistency: where ever possible the court has sought to ensure consistenciy between interpretation of the Charter and Canada’s international obligations and relevant principles of IL.

c. Define Content of the Charter:1. Suresh: IL rejects deportation to torture even where national security interests

are at astake, this is a norm that informs fundamental principles of justice in s. 7

2. Kazemi Estate v. Islamic Republic of Iran: the court was “prepared to accept jus cogen norms can generally be equated with principles of fundamental justice and are helpful to look to in the context of issues pertaining to IL.

d. Justifying Limitations of Rights 1. R. v. Keegstra: This has to do with the significance of human rights law and

Canada’s commitment in the area in assessing the Parliament’s objective under s. 1.

e. Delimiting Application of the Charteri. R. v. Hape: however, cannot enforce the Charter on another country.

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International Wrongs and Settlement of Disputes

1) State Responsibility When primary international legal obligations are breached secondary rules of

responsibility are triggered. 1. Step 1: existence of an international legal obligation in force2. Step 2: there was an act or omission which violates such obligation and the act

or omission is imputable to the state responsible and3. Step 3: that loss or damage has resulted from the unlawful act

a. All in Articles 1,2,12, 13 ILC

a. Attribution of conduct to State: a state is only responsible for acts of its servants or persons that are imputable or attributable to it. (Draft Article on the Responsibility of States for Internationally Wrongful Acts – Article 2)

i. Have to be a state organ (Article 4), ii. Empowered by stat’s law: entity also considered act of state (Article 5)

iii. Conduct of organ placed at disposal of another state (Article 6)iv. Even if the entity or person exceeds authority still state responsible (Article 7)v. Bosnia and Herzegovina v. Serbia and Montenegro – Genocide): the conduct has to

go beyond mere appearances (effective control test wins over overall control)vi. Example Cass: Veasquez Rodriguez Case: any violation carried out by an act of

public authority or by person who use their position of authority is imputable to the state

b. Conduct of Other Entities

i. Person Acting Under State Instructions, Direction or Control

A. Conduct directed or controlled by state (person or group acting on instruction)(Article 8) but there has to be a specific factual relationship between state and person.

a. Nicaragua v. USA: have to have effective control of forcesb. Prosecutor v. Dusko Tadic : Not necessary that the state issue

specific instruction to the group or its leader + Overall control which another case says is overbroad.

c. State can adopt (and acknowledge) certain act, language has to be clear and unequivocal (Article 11 of Convention on Genocide in CAN) + Iran Case “Spies and mercenaries”

ii. What Precludes Wrongfulness? Each has a test see CAN1. Consent2. Self-defence3. Counter Measure: see page 624. Force Majeure5. Distress6. Necessity

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1) Establishing a Breach of international Obligation a. There is a breach when an act of a state is not in conformity with what is required of

it by an international obligation (Article 12) Doesn’t ID source, could be all IL.b. State has to be bound (Article 13)c. France v. Mexico: objective Rule for Breaching international obligations

i. Caveat: the mental element may vary by circumstance but if cant discern only act is important

2) Remedies

a. Cessationi. Example: Arrest Warrant of April 11, 2000

b. Reparationc. Restitutiond. Compensation

i. British Ship “I’m Alone” v. US Examplee. Satisfaction

3) Invoking State Responsibility

a. Standingi. Only by states see Artciles 42, 46 and 48 of ILC Articles

ii. Example Blguim v. Senegal party because in the convention any state can invoke

b. Espousal Claimsi. Greece v. UK: once the state has taken up a case on behalf of one of its subjects before

an international tribunal the state is the sole claimant. Person given Diplomatic Protection

ii. ILC Draft Articles on Diplimatic Protection Article 14 (exhaust locat remedies) + Greece v. UK – Test: have to assume the truth of the facts on which the claimant state bases its claim,

iii. Exception – Article 4 of Hague convention – not a person who is also a national of the other

4) Procedures for Settling International Disputes

a. Diplomatic Proceduresi. Negotiation

ii. Good Offices + Mediationiii. Arbitration

b. Litigation i. ICJ

ii. Must Exhaust Diplomatic Negotiationsiii. Jurisdiction: Contentious or Advisory iv. See Article 36 of Statute of ICJ + Article 93 of UN Charter

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Use of Force

Starting Point: Articles 2(3) and 2(4) says states should refrain from use of force in IR. This includes Several things from the Declaratory Principles In CAN (one is War of Aggression)

Nicaragua v. USA: Principle of the use of force in UN Charter correspond to customary IL. It is either the use of force or the threat to use force (See case for what actions were considered use of force)

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: cannot threaten to use unlawful force and possession of nukes is not an unlawful threat.

Guyana v. Suriname: international wrongful act does not justify the threat of the use of force.

Definition of Aggression1) Friendly Declarations:2) Definition of Aggression, GA Resolution 3314: use of armed force by a state against another state’s

sovereignty, territorial integrity or political independence (Article 1). First use of force is considered prima facie aggression (Article 2). The Resolution has a list of acts that constitute aggression in Article 3.

Exceptions to the Prohibition of Force

1) Collective Military Action Authorized by the Security Council

a. Article 42 of the UN Charter Authorizes this where the SC can take any means necessary to restore or maintain international peace. Which is the formulation of the SC to authorize members to act (Resolution 678 – Annexation of Kuwait)

i. In the AG’s Advice on the Iraq War – US argued that member states can decide whether Iraq violated a resolution and can take action as a result due to Res. 1441 stretching “serious consequences” and the use of force for the “material breach”.

b. Argument SC has a responsibility to Authorize use of force in Humanitarian Intervention

i. Unilateral Right to intervene for humanitarian reasons? No, because: 1. Despite the use of force by NATO members in the Use of Forces (Yugoslavia v.

Belguim) case where NATO justified it by saying it acted to protect fundamental values enshrined in the jus cogens, there is no right of unilateral humanitarian intervention in IL today as stated in the Nicaragua case. Even in Kosovo the SC did not condemn the action of those that acted yet states do not agree on wording when to interfere.

ii. Can the SC intervene anyway? 1. Sure. Responsibility to the protect (see CAN for lay out and authority)

a. Without SC?i. Difficult: Chapter VII of the UN Charter clearly states that it is

the realm of the SC to address the full range of security threats with which states are concerned. However the “A more secure world” report (in CAN for full title) articulates a shift occurring room concerns over sovereignty to a responsibility to protect. But

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only seen as a very last resort, still tenuous and fraught will politics.

1. See Resolutions and three polar structure from 2009

2) Self-Defence a. General Principle

i. Article 51 allows SD to be used without SC authorization, talks of an inherent right

Example: Oil Platforms Case

b. Contentious Exceptions i. Self- Defence Against Non-State Actors

Framework for Self-Defense Exception:

1) Is the exception triggered?a. ID issue: Must prove the member state committed the impugned

attack, one is responding to (Iran Oil Case)b. Was there an armed attack?

i. Gravity: Is it more than a low level use of force (mere frontier incident)? Nicaragua Case

ii. Intention

2) Does the force meet the test of legality?a. Necessaryb. Proportionality

Have to notify UN for use of force. In Article 52 in ILC Articles on Responsibility for Internationally Wrongful Acts

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1. With the rise conflict with non-state actors following 911, such justifications have become ever present. However, Article 51 says nothing of non-state actors. In Justifying this the US claimed al-Qaida was supported by the Taliban and therefore Afghanistan (covering their basis for use of force argument for normal self defence argument).

ii. Pre-emptive Self-Defence v. Anticipatory Self Defence 1. See Definition for each

a. Pre-emptive self-defence (Bush Doctrine) debunked see A more Secure word on page 78.

b. Anticipatory Self-Defence – still contentious, not customary IL per se.

NOTE: Canada’s justification for Syrian intervention is similar to the Bush Doctrine in calling ISIS a threat to Canada.

International Criminal Law

1) History of the ICC a. Note the definition of Crimes against Humanityb. Nullum Crimen sine legec. The various attempts to bring the ICC to life

2) Genocide a. Prosecutor v. Radislav Krstic

i. Step 1: Targeted group must be at least a substantial part of the group to have an impact of the entire group indicates which indicates an intent to destroy.

1. List of considerations (not exhaustive – guidelines in case):a. Number of people killedb. Importance of the people killedc. Is the specific part of the group killed emblematic of the over all group or is

essential to the group’s survivalii. Step 2: Genocidal Intent

1. Where the circumstances permit the inference that the killing of a specific group was done with genocidal intent (despite the transferring of women and children which did not undermine the finding of the intent here)

3) International Criminal Court

a. Draft Code Article 18 Crime Against Humanity

b. Rome Statute of the ICC i. Jurisdiction: genocide, crimes against humanity, war crimes and the crime of aggression

ii. Proceedings Initiated by prosecutor, state party, by the SCiii. State Acceptance Requires Several Forms

1. Obligation by member states2. Consent by states appearing 3. National legal systems are unwilling or unable to genuinely investigate or prosecute

individuals suspected of having committed relevant crimes

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c. Not Principles reflected in Provision of Rome Statute i. Non-retroactivity

ii. Exclusion of jurisdiction for children under 18 at the time of alleged commission of crimeiii. Irrelevance of a Person’s official capacity iv. No statute of limitations to crimes within jurisdictionv. Individual criminal responsibility for aiding and abetting, ordering or inducing commission

of crimes vi. Command responsibility

d. The Court i. Three main bodies

ii. 18 judgesiii. Seat in the Hague in Netherlands, finances by parties to statute

4) Terrorism a. Definitions and Variety of Treaties b. Canadian Implementation of International Criminal law by Crimes Against Humanity and War

Crimes Act.

International Environmental Law

1) General Principles

a. States must not allow their territory to be used in a manner that damages the environment of other states

b. States must cooperate to protect the environmentc. States must notify other states of a risk to the environmentd. States must refrain from massive pollution of the atmosphere or the sea

2) Emerging/Evolving Principles of International Environmental Law

a. Preventionb. Sustainable Development c. Rights of future Generationsd. Common but Differentiated Responsibilitiese. Precautionary Approachf. The Polluter Pays

3) Sectorial Protections Under International Environmental Law

a. Protection of the Atmospherei. Trans-boundary Air Pollution

ii. Ozone Depletioniii. Global Climate Change

b. Nuclear, Toxic and Hazardous Substances

c. Marine Pollution

d. Biodiversity and Conservation of Living Resourcesi. Convention on Biodiversity

ii. Nagoya Protocol

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International Human Rights Law

1) Significance in the UN Charter

2) UN Human Rights System a. Articles of the UN Charter – The ECOSOC is tasked with the promotion of human rights and

fundamental freedoms for all without distinction b. Universal declaration of Human Rightsc. Two Leading Multilateral Human Rights Treaties of Universal application d. Specialized UN Sponsored Treaties

3) Three Regional Human Rights Systems a. Europeanb. Inter-Americanc. African

4) Substantive Human Rights Content a. Obligation to Respect and Ensure Civil and Political Rights

i. Article 2 of ICCPR’ii.

b. Progressive Realization of Economic, Social and Cultural Rightsi. Article 2 of ICESCR + Its interpretation

c. Limitation Provisionsd. Derogations

i. Article 4 of ICCPR

5) Encouraging Compliance

a. The Treaty-Monitoring Bodies – 10 such bodies at UB Level i. Four Procedures within various Treaty Bodies

ii. Reporting Procedure iii. Investigation of Systematic Violation

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b. Individual Petition Procedures i. Procedures:

1. Admissibility2. Consideration on Merits

c. Inter-state Petition Procedure

d. UN Charter Based Institutions i. UN Human Rights Council

1. Article 68 of Charter, ECOSOC can set up commission for the promotion of human rights

2. Nature of the body3. Article 40 of ICCPR

International Economic Law

1) Define Trade a. General Agreement on Tariffs and Tradeb. Agreementsc. WTO

i. Lex Specialis ii. Self-Contained Regime

iii. Form shifting/regime shifting

2) Law & Development a. What is developmentb. Good life v. GDP

i. Underlying Focusii. Access to Financial Services

1. Myth of microfinance2. Economy of Shame3. ATM installations

3) Articles a. Joost Pauwelyn, “The Role of Public International Law in the WTO: How Far Can We Go?”

(2001) 95 Am J Int’l L 535G552.

b. Laurence R. Helfer, “Regime Shifting in the International Intellectual Property System” (2009) 7 Perspectives on Politics 39G43.

c. James Thuo Gathii, “TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography” (2011) 26 Trade L & Dev. 26.

d. Maggi Carfield, “Participatory Law and Development: Remapping the Locus of Authority”

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(2011) 82 Uni Colorado LR 739.

Helfer Reading: Regime Shifting in the Intl IP System Forum/regime shifting = countries would go to the forum that was most favourable to them and then

bring back those principles to the WTO Works by broadening the policy spaces within which relevant decisions are made and rules are

adopted, thereby expanding the constellation of interests and rules Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) expanded IP to connect

with many other treatieso Required states to grant IP rights in fields such as genetic resources, that developing countries

belief should not be private property o Created concept of regime shifting

Allowed states to relocate rulemaking to intl venues concerned with other issue areas o Adopt a dynamic perspective that considers the development of the system over time

Regime shifting o Turned to WTO and WIPO organizations o Industrialized nations were absent from these venues or were represented by gov’t ministries

sympathetic to developing countries concerns o Turned to more bilateral and multilateral treaties o Enables both powerful and weaker states to develop rules that more than accurately reflect their

respective interests o Goal not to create conflicting rules, but to enable competing groups of countries

Consequenceso Coordinate their challenges to TRIP around reform proposals that were tested in more

sympathetic venues like the WHOo Enabled developing countries to adopt rules in one forum that were in tension with rules

approved in another venue o Opportunities for powerful states to narrow the options available to weaker countries to

implement IP rules in their national legal systems Creates a system of nested, overlapping and parallel treaties

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WTO has stopped law making 2011, negotiations in Doha stopped after 10 years of negotiations. Can say WTO is irrelevant. After 2011 there are many plurilateral and bilateral treaties making laws

Pauwelyn: Role of Public Intl Law in the WTO

Legal relationship between states varies depending on the states concerned No central legislator and there are bilateral legal relationships Includes primary and secondary rules, controlling rights and obligations directly/indirectly No inherent legal value like domestic law Exception to absence of hierarchy in intl law is rule of jus cogens

o VCLT rules that they prevail over all Another exception = rules created by different organs of the same organization often have an inherent

hierarchical status

Lack of hierarchy has major consequences1. States can contract out, except for jus cogens2. Custom can replace a treaty norm, unless treaty is lex specialis 3. Treaty norms under the UN Environmental Program, have the same legal status as those in the

WTO

WTO as Rules of Public Intl Law

WTO rules are lex specialis, as opposed to general intl law. But not to all rules of intl public law. A self-contained regime Aimed at liberalizing trade

Relationship between WTO and Intl Law

WTO rules:o Add previously nonexistent rights or obligationso That contract out of general intl law or deviate from, or even replace other preexisting rules of

international law o That confirm preexisting rules or treaty law

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Non-WTO rules that already existed when WTO treaty was concluded and that are a. relevant to and have an impact of WTO rules and b. have not been contracted out of ,deviated from, or replaced by the WTO treaty. General intl law

Non-WTO rules that are created subsequently to the WTO treaty that are the same A + B as above

Chorzow Factory case: PCIJ confirmed obligation to make reparation for breach of intl law South West Africa Advisory: right of termination of a treaty for breach Presumption in favour of continuity or against conflict, in the sense that if a treaty does not contract

out of a preexisting rule, that rule continues to exist Where there is no conflict or inconsistency, the customary intl law applies to WTO treaties and the

process of treaty formation under the WTO

Modifications For WTO purposes there is a distinction between those liberalizing trade and those restricting trade Does not provide lex specialis for the second type

Thesis: WTO is part of public international law, not a secluded island. Membership does not involve closed doors but rather cross-fertilization. How to deal with conflict is set out in the WTO treaty, look at common intentions of both parties.

Law and Development TWAIL: Third World Approaches to International Law

o A body of scholarship and thought questioning the status quo

What is Development?

A good life? Claims supported by moral and political philosophy. Health, education, gender parity, happiness index

Wealth? Measured by GDP. US and China the largest economies in the world GDP is the monetary value of all finished goods and services, produced within a country’s borders in a specific time period

o Calculated on an annual basis, can be calculated quarterly as well. o Includes all private and public consumption, gov’t outlays, investment and exports: minus

imports that occur within a defined territory. GDP a broad measurement of a nation’s overall economic activity

o China just creates goods to increase their GDP, not always an accurate indicator. Numbers are skewed, informal economy for example

o Live in a date collection based societyo GDP divided by population, therefore China has a much smaller GDP even though it has the

largest economy

Underlying Focus

Goal: Economic growtho Institutional and legal structures for certaintyo Need a rule of law paradigm (human rights, democracy)o Eradicate poverty

Problems with investment:o Use cheap slave labouro Bring in their own workers, breach the contract and the country does nothing

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Human rights and democracy: values which are all relative, when dealing with policy designs the labels are slapped on and not actually applied

Development as Freedom 3 critiques:

1. Carsfield article: lack of participation2. Financial inclusion initiatives

Financial inclusion is good, links people to traditional means of finance. Ex. Microcredit

The myth of microcredit is problematic: cycle of indebtedness, economy of shame (the way microcredit has been seen as empowering is a problem, woman carry the name in Bangladesh and have to do sex work to pay back loans)

2.5 billion adults lack access to formal financial services ATMS: the inconvenient experience. Long lineups, no electricity, curfews. No

infrastructure to support an ATM in developing countries 3. Law reform, e-Court design system

Carsfield: Participatory Law and Development, Remapping the Locus of Authority

If communities are left out of the process of development, they will be resentful there may be rejection of the projects which may better the community

Law and development efforts are ineffective because development agencies don’t engage with communities Advocates for a participatory approach to law reform and development, focus on self-determination

Transplanting Formal Law

Transfer of western legal systems First wave in the 1960s. Believed a legal system would secure property and contract rights and encourage

economic exchanges and that supported market based economies would encourage growth of capitalismo Modernization and liberal legalism within this era. Universal set of policies

Reincarnated later as the rule of law movement o World Bank funded 330 ROL projectso Institutions, formal and informal, provided the entry point for the rule of law interventions

Critiques

Often ineffective and violate principles of self determination The manner in which law was implemented was far more determinative than the effectiveness of the code itself:

Berkowitz study Often primarily concerned with the implementing nation, with detriment to the host nation

New phase: Third Moment

Stress on the local, and interest in participation Every society has some form of law, new trend to look at custom as well as formal law Some go so far to say culture is the root of poverty, emotionally charged More attention need to be paid to the extra legal and non legal norms, culture and structure that impact formal

law

Objection to the Culture Change Approach19

1. Encounter implementation and enforcement issues, viewed as illegitimate2. Assertion that outsiders know what’s best is riddled with normative concerns3. Myth that law and development work is neutral and apolitical by asserting that there is consensus about which

cultural values are universally superior

Participatory Development

Self-determination as the guiding principle for law and development efforts Critical for two reasons

o Tailored to the unique circs of the localeo Reforms will be designed by insiders or people at the user ends o Foster a sense of legitimacy

What constitutes development based on value judgments informed by cultural norms across communities

Challenges

1. Finding DMs2. Confronting a lack of consensus

TWAIL: James Gathi

Originated from Harvard Law, to develop new ways of thinking about the relationship between public intl economic law and poverty

Historically aware methodology, challenges visions of the simplistic visions of an innocent third world and colonizing dominant first world

Intl law and colonialism do not define all power relations, does not exhaust the subject of the position of oppressed peoples

No single TWAIL Central project: to challenge the hegemony of the dominant narratives of intl law, in large part by

teasing out encounters of differences along many axes Bring the problematique of colonialism to the center Embraces constructive and reconstructive efforts, transform intl from being a language of oppression

to a language of emancipation

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