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Henry Rothstein and Anne-Laure Beaussier

This chapter explains how the inevitable trade-offs between risk and cost in occupational health and safety (OHS) regulation are managed across EU member states. While trade-offs are explicitly sanctioned in UK law with a risk-based regulatory strategy, many continental countries mandate ambitious goals of safety. This contrast in statutory goals appears to reflect cleavages identified in the risk regulation literature between European precaution and Anglo-Saxon neoliberal risk-taking, as well as in the Varieties of Capitalism literature which suggests that workers are better protected in coordinated than in liberal market economies. However, that claim is challenged through a detailed analysis of OHS regimes in the UK and France, which shows that a narrow focus on headline regulatory goals misses how each country makes cost–benefit trade-offs on safety. In particular, the chapter shows how the nature and outcome of those trade-offs substantially vary according to the degree of coupling between regulation and welfare regimes, and national traditions of common and civil law. As such, the chapter offers a novel explanation for risk regulation and governance variety that emphasizes deep institutional differences among welfare states in the organization of the political economy and their philosophies of regulation. While risk-based rationalization may count as a universal strategy to shape societal outcomes intentionally despite the limits of contemporary governance, our findings evidence stark institutional and ideational limits of such novel regulatory approaches. The empirical identification of these diffusion limits also reflects that what is and is not “shapeable”, and how it continues to differ across settings.

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The White and Taft Courts, 1911–30

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Describes shift for black American from the abysmal Fuller Court to the moderately protective White Court (1911–21). Protection endured through the Taft Court years (1921–30). Analyzes potential causes; zeroes in on combination of a decade of northern mob violence against blacks at beginning of 1900s and the intense experience for the Supreme Court of U.S. v. Shipp II (1909) trial, where Court for the only time in its history tried criminals on original jurisdiction. The crime was contempt of [the Supreme] court in the form of lynch mob murder led by sheriff after murder victim’s appeal was accepted to be heard at Supreme Court. Elected branches treated Asians worse than ever, and the Court mainly protected them against administrative or state-level rights violations. In 1916 Court overruled Heff (1905) mandate that once they were citizens, Indians had rights equal to whites. Congress in 1924 gave U.S. citizenship to all Indians. KEYWORDS U.S. v. Nice (1916) Buchanan v. Warley (1917) Asian Barred Zones Act Peonage Moore v. Dempsey (1923) Nixon v. Herndon (1927)

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Xavier Groussot, Gunnar Thor Pétursson and Justin Pierce

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Water-footprint PPMs, the GATT and the TBT Agreement

Bulk Fresh Water, Irrigation Subsidies and Virtual Water

Fitzgerald Temmerman

International virtual water trade is vital for countries with limited (fresh) water resources, since the water which is used abroad in the agricultural and industrial production process, is virtually imported and thus ‘saved’ domestically. In times of climate change and global warming the question also emerges whether it would not be useful to globally compare products on the amount of water which is used in their production process, and allow for a different treatment under the GATT and TBT agreements. On the one hand, more fresh water could be saved on the global level. On the other hand, the doomsday scenario of hidden protectionism lurks around the corner. In this new context of ‘water-footprint PPMs’, the ‘like products’ debate prominently re-emerges. Before entering a fundamental water-footprint PPMs’ critique, an analysis is made of the most relevant GATT and TBT case law. KEYWORDS: Virtual water – trade – water footprint – PPM – like products – GATT

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Water-footprint labelling schemes and the TBT Agreement

Bulk Fresh Water, Irrigation Subsidies and Virtual Water

Fitzgerald Temmerman

The amount of water which is used during the production process of a particular agricultural or industrial product clearly constitutes highly interesting labelling information. Moreover, the percentage of rainwater used (the green water footprint); the percentage of groundwater used (the blue water footprint); and the percentage of already polluted water used (the grey water footprint), can also be calculated and displayed. In the meantime, several corporations already closely monitor the water footprint of their products. ISO recently issued international water-footprint standards, on the basis of which the TBT Agreement could guarantee a levelled playing field. Mandatory (governmental) labelling provisions are thereby treated more stringently. The most recent Tuna – Dolphin case, however, clearly demonstrated that is not always an easy task to determine whether a labelling scheme is mandatory or not. KEYWORDS: Virtual water – water footprint – labelling – consumer – ISO – TBT

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Matthew Happold

In recent years, the Security Council has increasingly utilized UN sanctions to induce compliance with international humanitarian and human rights law. This chapter critically appraises this practice, also looking behind the relevant resolutions to assess their actual implementation. The chapter has a specific focus on the protection of children. It argues that the use of sanctions as human rights devices should not be looked at in isolation and that the Security Council’s engagement with thematic issues should be viewed from a wider, comprehensive perspective. Keywords Security Council and human rights, Security Council and international humanitarian law, Security Council and children

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Mirko Sossai

The post-Cold War period has witnessed a proliferation of sanctions by regional organizations: whereas the first decade was characterised by the economic measures taken by ECOWAS and OAS, in recent years the African Union has been one of the most dynamic players, imposing both suspensions of membership and targeted sanctions in reaction to unconstitutional changes of government within the regional area. Moreover, the European Union has adopted sanctions against non-Member States. In at least four cases in Africa, non-forcible measures were adopted by the UNSC, as well as by the EU and the AU. Given the great variety of practice, it is important to chart this diversity and to offer an analytical framework for understanding the possible interplay with UN sanctions. A fundamental distinction should be made between regional measures simply implementing UN sanctions, and the adoption of autonomous measures by regional organizations. Their legal qualification depends on whether they constitute sanctions against Members under the establishing treaty or countermeasures under general international law. Situations of concurrence with UN sanctions might occur also in these scenarios: for instance, when a UNSC decision comes after a regional organization has already taken action, or when a UN sanctions regime represents the basis for more extensive regional measures. It is important to reconstruct the legal framework governing the relationship between UN and regional organizations on the issue of non-forcible measures. The chapter analyses it from three perspectives: (i) Member States’ obligations under the UN Charter; (ii) the specific content of the treaties establishing regional organizations; and (iii) the existence of customary rules of coordination and cooperation. Keywords regional organisations, countermeasures, coordination, African Union, European Union, Iran

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Jeremy I. Levitt

This survey examines the extent to which, if any, regional and UN actions endorsed or taken, respectively, under Article 41 of the UN Charter have influenced peace construction, namely the development of peace agreements in West Africa, with a particular emphasis on Liberia, Sierra Leone, and Guinea-Bissau. It broadly examines the extent to which the ‘civil strife’ regimes imposed on these countries have signaled, constrained or coerced individual, corporate and state behavior to prevent, manage or resolve conflict and restore the rule of law. Furthermore, this chapter inquires whether, when and in what context, new types of sanctions regimes may be emerging or needed such as those preoccupied with combatting economic crime and corruption and barring amnesty and human rights violators form participating in peace processes. Keywords sanctions, Africa, peace agreements, conflict management, united nations

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Pierre-Emmanuel Dupont

Resolutions of the UN Security Council imposing sanctions have sometimes addressed international financial institutions (IFIs) and requested these to adopt a certain course of conduct in relation to the sanctions, e.g. to refrain from new lending commitments in targeted countries. This chapter attempts to clarify the question of the extent to which IFIs are under a legal obligation to adhere to and implement UN sanctions (whether enacted by the UN Security Council or recommended by the General Assembly), and what are the potential limits to such obligations, in particular in situations where actions required to comply with UN sanctions regimes appear prima facie as conflicting with the mandates and objectives of IFIs. The analysis will build on a review of the practice of the General Assembly and the Security Council in their efforts to influence the behaviour of IFIs through sanctions, as well as of the actual behaviour of IFIs in response to such requests by the General Assembly or the Council, through the cases of Southern Rhodesia, South Africa, Portugal, Iraq, the DPRK and Iran. The chapter will proceed with an evaluation of the practice against the background of the applicable legal framework. The discussion will concentrate on the issue of primacy (or hierarchy) between the constituent instruments of IFIs, their Relationship Agreements with the UN (for those IFIs which are ‘specialized agencies’ in the UN system, such as the IMF and the entities composing the World Bank), and the UN Charter. In this context the present chapter will examine the legal arguments put forward by those advocating the primacy of Security Council resolutions, as well as those sometimes invoked by IFIs, based on their independence from the UN system and their constitutional obligation of political neutrality. Keywords international financial institutions (IFIs), UN sanctions, World Bank, IMF, UN Security Council, UN General Assembly

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Lisa Ginsborg

The UN counter-terrorism regimes present some of the most innovative features in the transformation of UN sanctions regimes from more traditional diplomatic tools, to law enforcement tools, and in the move towards individualization and formalization. The historical trends in individualization of the original Al Qaeda sanctions regime, and the resulting procedural formalization emerging from indirect legal challenges brought by individuals in response to their human rights’ violations are mapped in detail in the present chapter. In the move towards expanding the targets of the counter-terrorism sanctions to a growing number of more or less inter-related terrorist groups, the recently renamed ‘ISIL (Da'esh) and Al Qaeda Sanctions’ appear to be moving slowly down the path to thematic sanctions against individuals. Substantive formalization also forms an element in this process, with the development of international legal obligations under the direction of the Security Council ‘legislative resolutions’ linking more or less directly into the implementation of the sanctions by states. While the broader normative counter-terrorist action taken by the Security Council in the aftermath of 9/11 up to the most recent action on ‘foreign terrorist fighters’ has been evolving hand in hand with the counter-terrorism sanctions regime, significant differences remain in their functioning, individualization and degree of formalization. The current chapter aims to investigate these trends. Finally, the chapter provides a broad overview of the implications of individualization on the implementation and effectiveness of the sanctions regime, which is found to be somewhat deficient in terms of its full formalization towards effective implementation mechanisms. It appears that, similarly to the human rights implications, the impact of the move to individualization on the effectiveness of the sanctions was not fully considered in the early years of the sanctions and many different actors continue to grapple today with the challenges posed by the global individuals’ blacklist. Keywords counter-terrorism, Al Qaeda, Office of the Ombudsperson, ISIL/Da’esh, legislative resolutions, implementation