Optimal Protection of International Law: Navigating Between European Absolutism and American Voluntarism Book

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 states90

(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