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Regime Accommodation in International Law: Human Rights in International Economic Law and Policy

Heejin Kim

ISBN13: 9789004325500
Published: August 2016
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £153.00



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In Regime Accommodation in International Law: Human Rights in International Economic Law and Policy, Heejin Kim analyses the ways in which international human rights and economic law interact and conflict across a range of complex issues.

These sub-branches of international law are not entirely autonomous; as the author shows, they have been developed in a close relation to each other. International law – imperfect as it is – provides means to resolve the antinomies arising from conflicting rights and obligations under these sub-fields.

Against the difficulties of addressing non-economic concerns including human rights in the practice of WTO and foreign investment regime, Kim examines how decision-makers at different stages of international economic policy-making can accommodate, invoke, or reflect human rights in a better way.

Subjects:
Human Rights and Civil Liberties, International Trade, Public International Law
Contents:
Aknowledgements
List of Abbreviations
Table of Cases
CHAPTER 1. THE PROBLEM
A. “A Relationship to Discover
B. The Structure of the Research Project
CHAPTER 2. THE CONCEPTUAL FRAMEWORK: INTERACTION AND THE CONFLICT OF MULTIPLE INTERNATIONAL REGIMES
A. Meaning of International “Regime”
1. Regime in International Relations Scholarship
2. Regime in International Legal Scholarship and Jurisprudence
3. Summary
B. Regime Interaction and Conflict in International Law
1. Primary Reasons for the Growing Regime Conflict
1.1 Fragmentation of International Law
1.2 Difficulties of Conflict Management in International Law
2. Multiple Dimensions of the Regime Conflict
3. Norm Conflict in International Law
3.1 The Narrow Definition of Conflict
3.2 The Broad Definition of Conflict
3.3 Summary
C. Regime Accommodation in International Law
1. Legislative Accommodation
2. Administrative Accommodation
3. Adjudicative Accommodation
CHAPTER 3. REGIME INTERACTION AND CONFLICT BETWEEN INTERNATIONAL HUMAN RIGHTS AND ECONOMIC REGIME IN THE CONTEXT OF HISTORICAL EVOLUTION OF INTERNATIONAL LAW AND INSTITUTION
A. International Law in Permanent Development
B. The Advent of International Law
1. Precursors of International Law in Pre-Westphalia Era
1.1 Searching for the Foundations of Human Rights
1.2 The Discovery of New Continents
1.3 The Growing Sovereign Interests in International Commerce
1.4 Rise of Private Merchants
1.5 Implications
2. The Rise of the Modern Law of Nations
2.1 The State-centric Perspective of the Law of Nations
2.2 The Unpopular Notion: Human Rights Protection through International Law
2.2.1 Early Initiatives
2.2.2 The Enlightenment Project: Philosophical and Political Discourse on Human Rights
2.2.3 Human Rights as an International Matter of Concern?
2.2.3.1 Diplomatic Protection and the Treatment of Foreign Merchants
2.2.3.2 The Prohibition of Slave Trade
2.2.3.3 Life and Security of Individuals in International Humanitarian Law
2.2.3.4 Other Human Rights Issues Discussed in International Forum
2.3 State-building Efforts and the Early Development of International Economic Regulation
2.3.1 Trade and Investment
2.3.1.1 Economic Liberalism and the International Commerce
2.3.1.2 The Emergence of International Legal/Non-Legal Arrangements in the field of Trade and Investment Regulation
(i) Inter-State Commercial Exchange
(ii) Protecting Aliens and their Properties Abroad
 Diplomatic Protection
 Legal Protection under the Commercial Treaties Concluded between Major States
 Unequal Treaties and the Use of Force in the Relationship with the Colonies and Weaker States
 Use of Claims Commission and Arbitration
2.3.2 Colonial Expansion as a Wealth Accumulation Policy
2.4 International Codification Conferences
C. International Human Rights and Economic Law Regime
1. Background
2. The Rise of International Human Rights Law Regime
2.1 UN-based Human Rights Arrangements
2.1.1 International Bill of Rights
2.1.1.1 Rules and Institutions under the ICCPR
2.1.1.2 Rules and Institutions under the ICESCR
2.1.2 Various UN Human Rights Arrangements
2.1.3 Works of UN Human Rights Treaty Bodies
2.2 Regional Human Rights Protection Mechanisms
2.3 Features of the Development in International Human Rights Regime
2.3.1 Interdependence and Universality of Human Rights
2.3.2 Legal Rights and Obligations
2.3.3 The Multilayered Structure of Human Rights Protection
2.3.4 Weak Enforcement
3. International Economic Law – The Promotion of Free Trade and Foreign Investment
3.1 The Early Construction of the International Trading System and the Legal Regulation of Foreign Investment
3.1.1 Interwar Years
3.1.2 Failed Attempts to Create the International Trade Organization
3.2 Between Bilateralism and Multilateralism
3.2.1 The Immediate Post-Bretton Woods Moment
3.2.1.1 The Adoption of the GATT 1947
3.2.1.2 The Inception of the BITs Program
3.2.2 Major Developments in the Subsequent Decades
3.2.2.1 Some Features of the Period in Relation to IEL Development
3.2.2.2 From the GATT to the WTO
(i) Eight Rounds of Trade Negotiations Under GATT Framework
(ii) Uruguay to Doha: The WTO System
3.2.2.3 International Regulation for Foreign Investment
(i) Bilateral Arrangements in Foreign Investment Protection
(ii) Multilateral Initiatives to develop International Standards of Foreign Investment Protection
(iii) Recent Developments in International Law and Arbitration
 International Investment Agreements
 Investment Treaty Arbitration
D. Common Grounds
1. Treaty-based Foundations – Binding Rights and Obligations
2. Equal Status
3. International Agreements Governed by Public International Law
4. The “Public” Nature – Relationship between States and the Individuals
5. Aims for the Peace and Security of International Community
CHAPTER 4. THE PROJECT OF REGIME ACCOMMODATION: MANAGING INTERACTION AND CONFLICT BETWEEN INTERNATIONAL HUMAN RIGHTS AND ECONOMIC LAW
A. Legislative Efforts and Administrative Coordination
1. Relationship with External International Agreements and Organizations
1.1 Coexisting Rights and Obligations in Other International Agreements
1.2 Priority of One Treaty Over Another
1.3 Coordination with Other International Organizations
2. Environmental Regulation in International Economic Law and Policy
2.1 Multilateral Setting
2.2 Regional and Bilateral Setting
3. Labor Standards in International Economic Law and Policy
3.1 Multilateral Setting
3.2 Regional and Bilateral Setting
4. The Relationship between Human Rights and International Economic Law and Policy
4.1 The Work of UN Human Rights Agencies and Other Organizations
4.2 The Field of International Economic Law and Policy
4.2.1 Multilateral Setting
4.2.1.1 WTO Exception Clauses
4.2.1.2 WTO Waivers 180
(i) Kimberley Waiver
(ii) TRIPS Waiver
4.2.1.3 Human Rights Impact Assessments
4.2.2 Regional and Bilateral Setting
4.2.2.1 Human Rights-related Clauses in the FTAs and BITs
4.2.2.2 Human Rights Impact Assessments
B. IEL Adjudication in the WTO, the ICSID, and Other Settings
1. International Courts and Tribunals (ICs) in Conflict Resolution and Management
1.1 Conventional Rules of Conflict Resolution Techniques
1.1.1 The Lex superior Principle – Hierarchy of International Law
1.1.2 The Rules of Lex posterior and Lex specialis
1.1.2.1 The Lex Posterior Rule
1.1.2.2 The Lex Specialis Rule
1.1.3 Article 31(3)(c) and the Principle of Systematic Integration
1.1.3.1 Academic Analysis of Article 31(3)(c)
1.1.3.2 Legislative Efforts toward the Codification of Article 31(3)(c)
1.1.3.3 Judicial Application of Article 31(3)(c)
(i) Pre-VCLT Jurisprudence
(ii) Post-VCLT Jurisprudence
 International Court of Justice
 European Court of Human Rights
1.1.3.4 Article 31(3)(c) and Conflict Resolution
1.2 Other Conflict Resolution Techniques: the Private International Law Method
2. Environmental and Social Protection in the WTO Adjudication
2.1 GATT Cases involving Environmental and Social Regulations
2.2 WTO Disputes involving Environmental and Social Regulations
2.2.1 Relationship with Public International Law
2.2.2 Environmental Protection and Sanitary Regulation
2.2.3 Public Health
2.2.4 Public Morals
2.2.5 Freedom of Expression
3. Environmental and Social Protection in the Investor-State Arbitration
3.1 Claims of Foreign Investors
3.1.1 Arbitrary Arrest, Detention and Deportation
3.1.2 Moral Damage
3.2 Counter-Claims of the Host States
3.2.1 Anti-Racial Discrimination Policy
3.2.2 Cultural Heritage Protection
3.2.3 Access to Water
3.2.4 Tobacco Control and Public Health
3.3 Non-Disputing Parties Submission
3.3.1 Access to Water
3.3.2 Rights of Indigenous Populations
3.3.3 Tobacco Control and Public Health
3.4 Arbitral Tribunals
3.4.1 ECtHR Jurisprudence
3.4.1.1 Right to a Court
3.4.1.2 Meaning of Expropriation
3.4.2 ICJ Jurisprudence
3.4.2.1 Meaning of “Arbitrary”
3.4.2.2 Standard of Compensation
3.4.3 Treaty Interpretation in light of Article 31(3)(c) of the VCLT
3.4.4 Relationship with Public International Law
3.4.5 Cultural Heritage Protection
3.4.6 Access to Water
CHAPTER 5: GUIDELINES FOR DECISIONMAKERS: HUMAN RIGHTS IN INTERNATIONAL ECONOMIC LAW AND POLICY
A. IEL’s Approaches to Accommodate Human Rights
1. Legislative Accommodation
2. Administrative Accommodation
3. Adjudicative Accommodation – Practices of the WTO Dispute Settlement Bodies and Investment Tribunals
B. Concluding Remarks
Selected Bibliography
Index