Unilateral Enforcement Research Articles

Intelligence artificielle et application non contentieuse du droit : une réactualisation du problème du design institutionnel de Lon L. Fuller

Cet article propose de rapprocher les enjeux normatifs engendrés par l’intelligence artificielle dans la sphère du juridique à la problématique plus fondamentale du « design institutionnel » de Lon L. Fuller. L’optimisation des ressources étatiques promise par le déploiement de l’intelligence artificielle s’opérera en contrepartie d’une application « non contentieuse » du droit plus préventive et unilatérale, autrement dit managériale. En scindant le concept de la gouvernance étatique en ses ramifications « juridique » et « économique », Fuller entendait conjuguer celle-ci et celle-là dans un projet aspirant à la cohésion et au bon fonctionnement sociétal. Une réactualisation des écrits « fullériens » permettra de situer la portée de l’intelligence artificielle au sein de cette classification et offrira un éclairage favorable à l’élucidation des enjeux normatifs soulevés par l’intelligence artificielle étatique.

美国经济制裁执法管辖“非美国人”之批判分析

文章从法理、执法策略及其实施路径三个层面批判分析美国经济制裁领域对“非美国人”的执法管辖，对于化解我国企业和实体跨境交易风险、构建中国公法的域外适用体系具有重要的理论与现实意义。单边经济制裁领域的制裁目标、执法对象二元结构契合了国际法关于立法、执法管辖划分的原理，为一国公法的域外适用提供了法理空间。但是，美国执法管辖“非美国人”的实践滥用了效果管辖原理。美国依托美元金融基础设施，构造了执法管辖“非美国人”的联系因素和威慑、激励两大执法策略，以及美元同业往来账户、股东控制、执法和解、许可例外等公私互动路径。这些策略、路径滥用了美元国际货币地位，共同构成了美国对“非美国人”的“隐形”执法管辖机制。我国公法域外适用体系需要重点关注跨境执法管辖能力和机制，从公私层面积累、构建具有中国优势的执法管辖全球联系因素是基础和关键。

Trump vs. China? Tariffs under Section 232 of the Trade Expansion Act of 1962 Revisited

Abstract This study challenges the common belief that the ‘Trump tariffs’ are protectionist or a deliberate attack on China, the USA’s economic rival. By focusing specifically on Section 232 of the Trade Expansion Act of 1962 and equating its use to Section 301 of the Trade Act of 1974, this study instead demonstrates how the U.S. administration is actively repurposing protectionist laws to function as unilateral enforcement tools. Thus, this study argues that the tariffs enacted on steel and aluminium in 2018 under the guise of national security are not meant to protect the domestic market or to hurt the Chinese, but rather to ‘protect’ the ability of U.S. businesses to make profits abroad. By contrasting the justification for the tariffs to factual application, China is not identified as a target but rather as a convenient fig leaf. The article goes into further detail to demonstrate how the U.S. (ab)uses these tariffs during negotiations with South Korea, Japan, and other nations and finds multiple examples of how others have been affected significantly more than China. Here, the article describes how U.S. officials have mastered the art of simultaneously creating leverage, exchanging it for concessions, and keeping it.

Adjudication vs. ‘Frontier Justice’ in International Economic Law Disputes: The Trump Administration’s Push for Unilateralism in Trade Enforcement

After decades of U.S. efforts to build up the role of international courts in the area of international economic law, the Trump administration is looking for alternative approaches to international dispute settlement that increase the power of states over the process. Rather than rely on neutral adjudicators to interpret the law, to decide whether violations exist, and to authorize countermeasures, the Trump administration wants to be able to take on these tasks itself. There are two primary examples: The administration's view that Section 301 can be used to enforce trade agreements; and its push in the U.S.-China trade talks for a dispute settlement mechanism that does not make use of international adjudication at all. In this paper, we put the U.S. proposals in their international law context, and evaluate their impact. We begin with a discussion of the international law concepts of auto-interpretation, auto-decisions, and auto-enforcement. Next, we examine how international adjudication bodies provide legitimacy to determinations about compliance with international economic law agreements, contributing to their effectiveness. Finally, we turn to the Trump administration’s effort to internationalize unilateral enforcement, through the use of Section 301 as an alternative means of trade agreement enforcement, and more importantly through its efforts in the U.S.-China trade talks to dispense with neutral adjudication and, instead, to provide for unilateral determinations by each party that the other party is not in compliance.

Dispute Settlement in the WTO (Mind Over Matter)

The WTO Dispute Settlement System aimed to curb unilateralism by establishing a multilateral process operating under the aegis of the WTO as the exclusive forum for WTO adjudication. Intuitively, one would expect that those negatively affected by the curtailing of their power to unilaterally do justice for themselves, would agree to multilateral resolution of disputes if the established regime could guarantee enforcement of obligations in comparable terms (to unilateral enforcement). In this perspective, respect and guarantee of reciprocal commitments is the key ingredient. Reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons to doubt whether the WTO regime as it now stands guarantees reciprocity following the commitment of illegalities. It is probably more accurate to argue that the WTO regime serves ‘diffuse’ as opposed to ‘specific’ reciprocity. Still, WTO Members continue to routinely submit their disputes to the WTO adjudicating fora, lending support to the argument that the regime after all, was meant to curb punishment, and not to punish.

Unilateral Enforcement of Un Security Council Resolutions: The Case of Operation Iraqi Freedom

Abstract The prohibition of armed aggression under Article 2(2) of the United Nations Charter is one of the most important developments in international law and international relations in the modern era. The fact that the right to wage war is no longer accepted as falling within the sovereignty of the state has ushered in an appreciably stable international order based on the rule of law and not the rule of might. While states obviously still engage in warfare and numerous wars have been fought by states in the era of the UN, the very fact that the prohibition of armed aggression has assumed universal acceptance as customary international law is a notable achievement. In spite of the prohibition of armed aggression under the UN Charter, self-defence and collective action mandated by the UN Security Council serve as notable exceptions. The US-led invasion of Iraq in 2003 (i.e. Operation Iraqi Freedom) was peculiar because, the justification for the invasion hinged on the enforcement of UN Security Council Resolutions. This justification thus brought to the fore whether, under international law, there was the right to unilaterally enforce Security Council Resolutions. In the current resurgence of unilateralism typified by the US Trumpled withdrawal or threat of withdrawal from multilateral systems of international governance and cooperation, it is important to reiterate the lessons of unilateralism epitomized by the 2003 invasion of Iraq and the instabilities that have become offshoots of this invasion – e.g. the creation of monsters like the so-called Islamic State. This article discusses the resort to unilateralism under the guise of enforcing UN Security Council resolutions. It also engages in a brief discussion on the justifications for war prior to the UN Charter and the provisions on the use of force prescribed in the Charter. It uses the US-led invasion of Iraq in 2003 as a case study to shed light on legality of unilateral enforcement of UN Security Council Resolutions.

Unilateral Enforcement of UN Security Council Resolutions - The Case of Operation Iraqi Freedom

The prohibition of armed aggression under Article 2(2) of the United Nations Charter is one of the most important developments in international law and international relations in the modern era. The fact that the right to wage war is no longer accepted as falling within the sovereignty of the state has ushered in an appreciably stable international order based on the rule of law and not the rule of might. While states obviously still engage in warfare and numerous wars have been fought by states in the era of the UN, the very fact that the prohibition of armed aggression has assumed universal acceptance as customary international law is a notable achievement. In spite of the prohibition of armed aggression under the UN Charter, self-defence and collective action mandated by the UN Security Council serve as notable exceptions to the prohibition of warfare. The US-led invasion of Iraq in 2003 (i.e. Operation Iraqi Freedom) was peculiar because, the justification for the invasion hinged on the enforcement of UN Security Council Resolutions. This justification thus brought to the fore whether, under international law, there was the right to unilaterally enforce Security Council Resolutions. This paper discusses this thorny issue. It engages in discussion on the justifications for war prior to the UN Charter and the provisions on the use of war as currently provided for in the Charter. It uses the US-led invasion of Iraq in 2003 as a case study to shed light on legality of unilateral enforcement of UN Security Council Resolutions.

MILITARY INTERVENTION IN THE GAMBIA: LESSONS FROM THE IVORY COAST, LIBERIA AND SIERRA LEONE

This article analyses the recent Economic Community of West African States (ECOWAS) military intervention in the Gambia, primarily focusing on possible legal bases for the enforcement action. It examines the political situation following the release of the election results and details the international response to the post-election situation in the Gambia. Among the legal bases assessed include United Nations Security Council authorisation of regional enforcement action under Chapter VIII of the U.N. Charter through Resolution 2337 (2017), intervention by invitation and consent through prior treaty. In so doing, the article also illuminates the plausibility that the ECOWAS military intervention may be considered as unilateral enforcement action, a point further stressed through an analysis of prior ECOWAS interventions, most notable, the interventions into Sierra Leone and Liberia. Moreover, the intervention in the Ivory Coast following the 2010-2011 post­election crisis is also examined in showcasing the situational similarities between those in the Ivory Coast and those in the Gambia. In so doing, the article inter alia, explores the international legal framework pertaining to the prohibition of the threat and use of force; analysing its nature as well as exceptions to it. Article 2(4) of the U.N. Charter, read together with Article 53, therefore form the backbone of the contribution.

Nigel D.White, The Cuban Embargo under International Law: El Bloqueo, Abingdon and New York: Routledge, 2015, 208 pp, hb £95.00, pb £34.99.

The focus of Professor White's timely book The Cuban Embargo under International Law: El Bloqueo is the unilaterally imposed US embargo on Cuba. In it he offers a thorough analysis of El Bloqueo and its effects, and the resulting compatibility or otherwise with international law. However, as the author makes clear, this is less a study of the embargo in its own terms than a broad analysis of what the embargo reveals about international law. Although illuminating, it is not always a pretty story. The book highlights how international law operated to enable and facilitate a problematic sanctions programme. In its consideration of substantive rules (notably regarding use of force, sovereignty, self-determination, human rights, trade and investment) the book also reveals the pointlessness and obscuring effects of fragmented or compartmentalised international law: for example certain legal rules on self-help enabled a programme which impacted the Cuban economy and compromised the human rights of ordinary Cubans including their access to medicines and utilities. Despite White's even-handed treatment of the subject matter, there remains a strong impression that the US sanctions programme reflected the power imbalances which ebb and flow in international law and in this case embodied the punishment of an ingrate territory. Indeed by returning to the (now often overlooked) Bay of Pigs incident, its significance as an event not just for Cuba, but in assisting an understanding of ideologically-driven interventions (and indeed US imperialist inclinations) is also revealed. In a more comparative frame, the reader cannot help but be conscious of the parallel ‘Vietnam context’ during key points in the Cuban story. This gives considerable pause for thought, especially when it comes to reflecting on the author's critique of the application of notions of regime change and the operation of international humanitarian law. The book certainly prompts us to re-think issues of self-help and self-defence in international law and how their invocation can often be ironically self-destructive. White's exposition of the law of countermeasures is extremely helpful and it does appear that there is no better context for its illustration than the sixty years of US practice towards Cuba. The book also illustrates the problems regarding the unilateral enforcement of international law by individual states.

Welfare Effects of Labor Migration

The developed theoretical model analyzes the welfare effects of labor migration. I find that for the receiving country immigration enhances welfare as long as the marginal benefits to the natives’ income exceed the social costs of immigration. Over-emigration of workers generated by free mobility is welfare detrimental to the source country because of the diaspora effect – migrants negatively affect their own income. The source country prefers to coordinate the immigration quota with the destination country, because the coordinated solution internalizes the negative diaspora effect. Contrary to popular opinion, under certain conditions unilateral enforcement of the immigration quota benefits the source country also, because it reduces the extent of the migrants’ income decline.

Somali Pirates as Agents of Change in International Law-making and Organisation

Somali piracy is a highly adaptive business activity that can only be understood in context. The present article aims to provide an analysis of the phenomenon and in particular its impact on international law-making and organisation. The relevant developments have moved fast enough that there is already a significant history of international co-operation in response to Somali piracy. The contention of this article is that the most important impact of Somali pirates as agents of change has not been on the substantive law of piracy but through generating new models of co-operation and soft-law. This has been evident in a range of shifts: the move from a military approach to law enforcement operations; from unilateral enforcement to international authorisation and then to transnational co-ordination; a shift from reliance on formal organisations to informal co-ordinating bodies; and from maritime operations in the Gulf of Aden to various land-based operations, most notably including law and prison reform. The use of soft-law in particular is most evident in the shipping industry's response to piracy. The present article thus proceeds by first offering an extended account of the history of Somali piracy and its context. This is vital for two reasons: first, one must appreciate that Somali piracy is not a static phenomenon; and second, understanding how Somali piracy is shaped by its context cautions us against concluding that Somali-style piracy may `spread' to other regions. The article then turns to the rise of international counter-piracy operations and counterpiracy co-operation. Here we see a rapid shift from a largely `military paradigm' response (unilateral actions and Security Council authorised missions) to a

REGIONAL COMPETITION LAW AGREEMENTS: AN IMPORTANT STEP FOR ANTITRUST ENFORCEMENT

This essay argues that regional competition law agreements on joint enforcement and advocacy (rjcas) hold an important potential to solve many of the enforcement problems that small and developing jurisdictions face and can provide additional benefits that go beyond such solutions. It also argues that the costs involved in such agreements are not prohibitive and that many of these costs can be overcome by structuring appropriate solutions. Accordingly, rjcas have the potential to create Pareto superior solutions to enforcement problems relative to unilateral enforcement. The essay then broadens the analysis to the potential effects of rjcas on non-member states. It is argued that such agreements create much lower negative externalities for non-member states and for international coordination efforts than regional trade agreements. On the contrary, they often create positive externalities for non-member jurisdictions. Accordingly, they offer important potential for strengthening competition law enforcement and should generally be encouraged. In addition, as the article shows, rjcas can further international efforts for coordination and cooperation in competition law.

Regional Competition Law Agreements: An Important Step for Antitrust Enforcement

In the past two decades the number of jurisdictions that adopted a competition law has grown exponentially. Yet many of them, most notably developing jurisdictions and small ones, face significant obstacles to efficient enforcement. Indeed, a World Bank study estimated that competition authorities in advanced countries are 40% more effective than their counterparts in developing ones. Many of these problems result from the unilateral enforcement model which currently dominates competition law.This essay argues the regional competition law agreements on joint enforcement and advocacy (RJCAs) hold an important potential to solve many of the enforcement problems that developing and small jurisdictions face and can provide additional benefits that go beyond such solutions. It also argues that the costs involved in such agreements are not prohibitive and many can be overcome by structuring appropriate solutions. Accordingly, RJCAs hold the potential to create Pareto-superior solutions to enforcement problems relative to unilateral enforcement.The essay then broadens the analysis and focuses on the potential effects of RJCAs on non-member states. It is argued that such agreements create much lower negative externalities on non-member states and on international coordination efforts than do regional trade agreements. On the contrary- they often create positive externalities on non-member jurisdictions. Accordingly, they offer an important potential for strengthening competition law enforcement and should generally be encouraged.Finally, it argues that RJCAs generally further the international efforts for coordination and cooperation in competition law. They might even serve to overcome the main obstacle for including anti-cartel provisions in the WTO or in another supranational enforcement body.The analysis is timely, given that the past few years have experienced a wave of regionalism which is not only characterized by an increased dynamism but is also often characterized by more ambitious and deeper levels of integration, taking steps that go beyond information sharing and comity. Not surprisingly, all of the new regional agreements involve developing or small signatories.

Creeping Unilateralism: How Operation Provide Comfort and the No-Fly Zones in 1991 and 1992 Paved the Way for the Iraq Crisis of 2003

In this article, it is argued that the genesis of the Iraq Crisis of 2003 within the Security Council can be traced to earlier patterns of acquiescence by Council members in US and UK unilateral enforcement action in Iraq. By the time this acquiescence ceased, between 1994 and 1996, UK and US enforcement policy was set and would culminate in Operation Iraqi Freedom in March 2003.

Law, Labour, and Legitimacy: The Complexion of WTO

The WTO as an institution was set up ‘to help trade flow as freely as possible,’ thus ensuring smooth passage towards economic globalization but, unfortunately, this has not been the case. The provisions and instrumentality of WTO have been used to scuttle the independence of developing nation-states and disempowering them economically. The fissure between the developed and the developing nations has been broadened due to the vexing issue of labour standardization that has created a major hurdle in defining and describing the ambit and access of WTO. This issue has haunted the WTO since its inception in Marrakash way back in 1994, and has been identified as the major rallying point for the developing countries from Seattle to Cancun. One of the main issues that has emerged in this conflict is the linkage between labour standards and trade. This issue has a bearing on the structural and legal foundations of the very organization (WTO). This article seeks to examine the arguments given by both sides of the debate. India for its part has played a crucial role in this global standoff by being one of the main leaders of the developing nations. Given its transitional economic status, labour standards do present it with a ‘Catch-22’ situation. One must not commit the error of considering its reasons for opposing the linkage between trade and labour standards as being the same as all other developing nations since a number of factors has resulted in India adopting this course. Certain emerging factors like the fear of Chinese goods flooding the markets and the EU and American unilateral enforcement might force India to possibly rethink its posture. To conclude, it can be stated that in this era of American unilateralism, global institutions like the WTO are faced with the risk of extinction. The tendency to promote homogenization of trade through the hegemony of WTO smacks of arrogance and unilaterism that is simply unacceptable in a plural world setting. Both sides to the conflict must necessarily make some concessions with regard to labour standards in order to prevent this from taking place. To sum up, the major issues discussed in the paper are as follows: The provisos and instrumentality of WTO have been consistently used to scuttle the independence of developing nation-states and disempowering them eco- nomically. As a result, the chasm between the developed and the developing nations is becoming wider and wider. India for its part has played a crucial role in this global standoff by being one of the main leaders of the developing nations. But, it alone can do very little to alter the hegemony and, hence, it has to form a block with nation-states placed in similar positions a la Brazil. The issue of labour standards needs to be addressed both at the level of ILO and WTO so that the member countries can arrive at a broad consensus. Efforts should be directed at addressing the ethical, environmental, and social issues along the core economic concerns in order to create a sustainable, equal world system.

Emerging Constitutional Strategies

The author discusses Andrew Butler's "Limiting Rights", Anthony Lester QC's "The Magnetism of the Human Rights Act 1998" and Cheryl Saunders' "Protecting Rights in Common Law Constitutional Systems; A Framework for a Comparative Study" to illustrate that the tension between rights protections and democracy could in fact lead to constructive strategies which protect both democracy and human rights in the future. At first instance, there appears to be a tension between the unilateral enforcement of individuals by the judiciary, and the democratic rights of the whole of society. However, the three papers presented by Butler, Lester QC and Saunders illustrate that comparative analysis shows that society places fundamental value on both. The author concludes that societies should strive to strike the ideal balance between the two.

The limits of unilateral enforcement of community objectives in the framework of UN peace maintenance

The focus of this article is to examine, in the light of the evolution of UN peace maintenance, the justification and validity of non-Security Council authorized military interventions, such as that of NATO in Kosovo, based on claims to unilateral enforcement of UN resolutions and objectives. The function of resolutions of the Security Council authorizing military force is inter alia that of 'precluding wrongfulness'. The article examines justification of unauthorized unilateral action on the basis of implied authorizations, implied powers doctrine, legitimization ex post facto and emerging norms on the humanitarian intervention, and concludes that in the absence of express Council authorization, this remains an act of usurpation of Council powers and a resort to force prohibited under international law. Ultimately, the debate does not revolve around a choice between protection of human rights on the one hand and state sovereignty on the other, but over the means utilized. Far from assuming a static view of the international legal system, the choice of collectively authorized over unilateral measures is an attempt to escape regression to unilateral decisions involving community interests. Moreover, the insistence on strengthening multilateral institutions, such as the UN, by addressing current concerns, far from representing a last-ditch nostalgic return to Wilsonian and liberal idealism stems from the need to protect the diversity of cultures and claims.

Unilateral action in the UN system

Realization of UN Charter values has required adaptation of its procedures in the face of Cold War politics and conflicts of national self-interest. Security Council machinery has never worked quite as planned. 'Recommendations' for the use of force have substituted when Article 43 agreements were not forthcoming and direct enforcement action was unavailable. 'Abstentions' by permanent members of the Council have been counted as 'concurrences' to allow decisions to go forward. In an era with an expanded account of human rights and human security, it should not surprise us that there is an impetus to permit effective action: in humanitarian emergencies through an expanded reading of Chapter VIII, with new latitude for regional action, and in meeting the dangers of weapons of mass destruction and terrorism through a broader account of Article 51 self-defence and unilateral enforcement of standing Council resolutions. The United Nations Charter is, perhaps more than we care to acknowledge, a document of its time, built upon the Western alliance of World War II and the expectation that post-war action would be undertaken with unity by the anti-fascist powers. Its adaptation to the ideological schism of the Cold War, and to a post-Cold War period where national interests continue to diverge, has required focus on Charter goals as much as on formal procedures. Realization of the Charter's humane values has, at times, required the substitution of other actors and imperfect observance of the Charter's forms. The justification of procedural latitude has weighed more heavily on international lawyers than upon pragmatic political authorities. It may be time for the twain to meet.

Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council*

Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council*

Securities Fraud in the International Arena: Unilateral vs. Multilateral Enforcement of Insider Trading Sanctions

Securities Fraud in the International Arena: Unilateral vs. Multilateral Enforcement of Insider Trading Sanctions