Recueil des cours, Collected Courses, Tome 410

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American Schools of International Law, by H. H. KOH, Sterling Professor of International Law at Yale Law School.
Is there still one international law and does the United States of America really believe in it? This lecture inaugurating the Hague Academy’s first Winter Session, by an American scholar who served as US State Department Legal Adviser, argues that Americans do believe in international law as part of their nation’s founding credo. Although recent US administrations have challenged 21st century international law, most American lawyers and legal scholars remain committed to the rule of international law. This dominant strand of international thinking among American academics and practitioners inhabits a school with strong historical roots known as the “’New’ New Haven School of International Law.” While some American schools of international legal thought diminish international law, they remain the exception. The “New” New Haven School argues, both positively and normatively, that rules of transnational legal process and substance must ensure that international law still matters. As America and the world together face such 21st Century globalization challenges as climate change, pandemic, and migration, this dominant American school remains determined to ensure that the United States will pay decent respect to international law.

Animals in International Law, by A. PETERS, Director at the Max Planck Institute for Comparative Public Law and International Law Heidelberg.
The plight of animal individuals and species inflicted on them by human activity is a global problem with detrimental repercussions for all humans and for the entire planet. The book gives an overview of the most important international legal regimes which directly address animals and which indirectly affect them. It covers species conservation treaties, notably the international whaling regime, the farm animal protection rules of the EU, international trade law, and the international law of armed conflict. It also analyses the potential of international fundamental rights for animals. Finding that international law creates more harm than good for animals, the book suggests progressive treaty interpretation, treaty-making, and animal interest representation for closing the animal welfare gap in international law. A body of global animal law needs to be developed, accompanied by critical global animal studies.

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Harold Hongju Koh, born on 8 December 1954 in Cambridge, Massachusetts, United States.
Education: AB summa cum laude, Harvard University (1975); BA (Hons), First Class Honors, Oxford University (1977); MA, Oxford University (1997): JD cum laude, Harvard Law School (1980); MA (Hons), Yale University (1990); seventeen honorary doctorates (Quinnipiac Law School; University of Denver Sturm College of Law: American University School of Law; Wayne State University; Northeastern University: New School for Social Research; Iona College, Jewish Theological Seminary; University of Hartford, Widener School of Law; Skidmore College; Connecticut College; University of Connecticut; Dickinson College; Suffolk Law School; Albertus Magnus College; CUNY-Queens Law School).
Legal practice: Legal Adviser, United States Department of State (2009-2013); Assistant Secretary for Democracy, Human Rights and Labor, United States Department of State (1998-2001); Attorney-Advisor, Office of Legal Counsel, United States Department of Justice (1983-1985); Associate, Covington & Burling, Washington, DC (1982-1983); Law Clerk, Justice Harry A. Blackmun, United States Supreme Court (1981-1982); Law Clerk, Judge Malcolm Richard Wilkey, United States Court of Appeals for the DC Circuit (1980-1981).
Bars: New York (1981); District of Columbia (1981); Connecticut (1985).
Academic positions: Sterling Professor of International Law (2013-present), Dean (2004-2009), Martin R. Flug ’55 Professor of International Law (on leave) (2009-2013), Yale Law School; Gerard C. & Bernice Latrobe Smith Professor of International Law and Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School (1993-2009); Professor of Law, Yale Law School (1990-1993); Associate Professor of Law, Yale Law School (1985-1990); George Eastman Visiting Professor of Law, Oxford University (2021-22); Arthur Goodhart Visiting Professor of Legal Science, Cambridge University (2018-2019); Phi Beta Kappa Visiting Scholar (2018-2021); Hague Academy of International Law (Summer 1993, Winter 2019); Visiting Professor, University of Hawaii Law School (2016); New York University (NYU) Law School, NYU Abu Dhabi (2015); Distinguished Scholar-in-Residence, Columbia Law School (2014); European University Institute (2014); Clarendon Law Lecturer, Oxford University (2014); Robert F. Drinan S. J. Visiting Professor of Human Rights, Georgetown Law School (2013); Oliver Smithies Lecturer, Balliol College, Oxford University (2013); Visiting Professor of International Business and Trade Law, Faculty of Law, University of Toronto (Winters 2000, 1990); Waynflete Lecturer, Magdalen College, Oxford University (1996); Oxford/George Washington University Joint Programme in International Human Rights Law (multiple times since 1996); Lecturer, Aspen Institute Seminar (regularly since 1994), NYU-Columbia Law Judges Colloquium (regularly since 2011); Federal Judicial Center; Professor, Salzburg Seminar in American Law and Legal Institutions (Summer 1991); Adjunct Assistant Professorial Lecturer in Law, George Washington University National Law Center (1982-1985); named lecturer at more than thirty universities.

Anne Peters is Director at the Max Planck Institute for Comparative Public Law and International Law Heidelberg (Germany), and a professor at the universities of Heidelberg, Freie Universität Berlin and Basel (Switzerland), and a L. Bates Lea Global Law Professor at the University of Michigan. She has been a member (substitute) of the European Commission for Democracy through Law (Venice Commission) in respect of Germany (2011-2014) and was a legal expert for the Independent International Fact-Finding Mission on the Conflict in Georgia (2009).
In 2020 she received a doctor honoris causa from the University of Lausanne. She was President of the European Society of International Law (2010-2012) and has served on the governance board of various learned societies such as the German Association of Constitutional Law (VDStRL) and the Society of International Constitutional Law (ICON•S). She is currently Vice-President of the Basel Institute of Governance (BIG), and Chairwoman of the German Association of International Law (DGIR).
Anne was a fellow at the Wissenschaftskolleg in Berlin (2012-2013), and held visiting professorships at the universities of Beijing (Beida), Paris I, Paris II, Sciences Po, and Michigan. Born in Berlin in 1964, Anne studied at the universities of Würzburg, Lausanne, Freiburg and Harvard, and held the chair of public international law and Swiss constitutional law at the University of Basel from 2001 to 2013. She obtained the Habilitation qualification at the Walther Schücking Institute of Public International Law at the Christian Albrechts University Kiel on the basis of her thesis, “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe) in 2000.
Her current research interests relate to public international law including its history, global animal law, global governance and global constitutionalism, and the status of humans in international law. She has regularly taught international law, human rights law, international humanitarian law, the law of international organisations, EU law, comparative constitutional law and constitutional theory, and Swiss constitutional law, and global animal law.
American Schools of International Law, by H. H. KOH, Sterling Professor of International Law at Yale Law School
Chapter I. Introduction
Chapter II. International law as a founding principle of the United States of America
Chapter III. American schools of international law
A. Five schools: a sketch
B. Yale’s New Haven School meets Harvard’s International Legal Process
C. Transnationalism and the “New” New Haven School
Chapter IV. Twenty-first-century international law under challenge
Chapter V. The United States and international law in the age of Trump
Chapter VI. Preserving one international law: The challenges of globalization
Chapter VII. Conclusion
Bibliography General
Bibliography American Schools of International Law

Animals in International Law, by A. PETERS, Director at the Max Planck Institute for Comparative Public Law and International Law Heidelberg
Preface
Chapter I. Animals: A Topic for international law
A. Overview of the book’s argument
B. Dismantling the “great legal wall” between human and non-human
C. National animal protection law
D. A globalised problem requires a global solution
1. Global social, ecological and ethical consequences of globalized animal usage
2. The need for global regulation
E. Global standards as a response to outsourcing
1. The global mobility of animal-related industries
2. Animal welfare chills
3. Race to the bottom or race to the top?
F. Conclusion: The need for a global animal law
Chapter II. An overview of international rules on animals
A. Introduction
B. Animal conservation treaties
C. The legal status of wildlife
1. Wild animals as a natural resource
2. Wild animals in international spaces
3. Wild animals as a “common concern”, “common heritage”, “global resource” or “global public good”?
4. Assessment
D. The Office International des Epizooties: Action for animal welfare
1. The OIE animal welfare activity since 2002
2. The OIE animal welfare standards
3. Assessment
E. The international financial institutions: Animal welfare standards and policies
1. Practice
2. Assessment
F. Private actors in the global governance of animals
1. Private animal welfare standards
2. “Voluntary” animal welfare labels
3. Lawfulness, legitimacy and effectiveness of private animal welfare standards and labels
(a) The international legality of private standards and labels
(b) Legitimacy and effectiveness
4. Consumer choices
G. Conclusions
Chapter III. The International Convention for the Regulation of Whaling: Dead or alive?
A. Basic facts on whales and whaling
B. The international whaling regime in a nutshell
1. From resource management to species protection
2. Types of whaling under the ICRW
3. Lawmaking by the International Whaling Commission
(a) Recommendations
(b) Regulations
C. The ICJ judgment on Whaling in the Antarctic of 2014
1. Background
2. Proceeding and findings of the Court
3. “Scientific” whaling after the ICJ judgment
4. Assessment
D. Lawful dynamism or unlawful mission creep?
1. The role of the IWC according to the Florianópolis Declaration of 2018
2. The critique of ultra vires activity
3. Instruments, forms, and processes of putative legal change
4. The reinterpretation of the ICRW
(a) Whale species protection
(b) Whale welfare
(c) Whale rights and the prohibition of genocide
E. Conclusions
Chapter IV. Farm animals in the law of the European Union
A. Parameters of animal-related EU legal action
1. The legal and institutional framework
2. Secondary law
3. The role of consumer-citizens
B. Animals as sentient merchandise
1. Animals as a marketable goods
2. Animals as sentient beings
C. The dual motivation of EU legislation
1. Boosting the internal market with side effects for animal welfare
2. Balancing off
3. Levelling up?
D. The Court of Justice of the European Union on animal welfare
1. Overview
2. Little leeway for member states’ higher standards
3. The legal status and functions of “animal welfare” in the case law
4. Summary and assessment
E. Towards better animal welfare in EU law
1. Animal-friendly interpretations
2. Better implementation
3. New laws
4. Green-plating by frontrunner member states
5. Removing animals from the categories of “goods” and “things”
6. International action
(a) Standards for imported products
(b) Animal welfare guidelines and impact assessments
(c) International cooperation and harmonisation
F. Conclusions
Chapter V. Animals in international trade law
A. International trade and trade law as a chiller of animal welfare measures
1. Threats to domestic animal welfare measures
2. Domestic and EU animal welfare measures as a competitive disadvantage?
B. Coping strategies for animal welfare
1. Overview
2. Import bans
3. Legal limits set by international trade law
C. National measures for animals outside the acting state’s territory and the problem of “extraterritoriality”
1. Legal qualification as extraterritorial repercussions
2. Lawfulness and legitimacy under general public international law
D. Animal-friendly production methods and the problem of “like products”
1. The scope of non-discrimination obligations under the GATT and the TBT Agreement
2. The “likeness” test and process and production methods
3. Animal-friendly production methods may lead to unlike products
E. The justification of animal health, welfare and conservation measures
1. Protection of animal health and animal life
(a) Under GATT and the TBT Agreement
(b) Under the SPS Agreement
(c) Overlaps between animal health and animal welfare
(d) Extraterritorial repercussions
2. Animal protection as a conservation of exhaustible natural resources
(a) Protection as conservation
(b) Extraterritorial repercussions
F. Prohibiting products under the heading of “public morals”: The Seal Products case
1. Facts
2. Findings
(a) Violation of basic obligations under GATT
(b) No justification under Article XX of GATT
3. Follow-up and assessment
G. Further animal welfare measures
1. Animal welfare tariffs under GATT
2. Animal welfare labelling under the TBT Agreement
3. Animal welfare payments under the Agreement on Agriculture
4. Animal welfare dumping under the Anti-dumping Agreement
H. A new generation of animal-friendly trade agreements
1. The law as it stands
2. Upholding levels of protection
3. The way forward
I. Conclusions
Chapter VI. Animals in the law of armed conflict
A. Introduction
B. The “neglected victim of armed conflict”
C. Incidental protection of animals
1. Protection of animals as commodity
(a) The protection of livestock as property
(b) Wild animals as object of pillage and plunder
2. Further incidental protection of animals
3. Animals in the law of disaster relief
D. Animals as part of the protected environment
E. The basic principles of IHL and animals
1. Proportionality and military necessity
2. The prohibition of superfluous injury and unnecessary suffering
3. The dual meaning of the principle of humanity
4. The principle of distinction
(a) Animals objects
(b) Military or civilian objects?
(c) Animals as prohibited weapons?
F. Animals as actors in war
1. Animals as combatants?
(a) The fit of the rules
(b) Benefits of the combatant status
(c) Burdens of the combatant status
(d) Towards a prohibition of conscripting animals
2. Animals as civilians and their “direct participation in hostilities”
3. Animals as protected persons?
G. The Martens clause for animals
H. Conclusions and outlook
1. Conduits for developing the law
2. The persistent dilemma
3. The status question
Chapter VII. Towards international animal rights
A. Animals as objects of protection
1. Human stewardship and duties of care towards animals
2. From “thing” through “thing-like” to “sentient being”
B. Animal personhood?
1. Terminology
2. Functions of personhood
3. Conceptions of personhood
4. Human personhood
5. Non-human personhood
6. Contingency and fuzziness of personhood
C. Moral rights for animals?
D. Animals as bearers of legal rights
1. Animal rights in India
2. Animal rights in the United States
3. Animal rights in Latin America
E. Legal models for animal rights
1. Inadequacy of the private and corporate law model
2. The model of rights of nature
3. The model of fundamental rights of humans
4. The end of analogies
F. Objections against animal rights
1. Practical problems
2. Against rights as such
3. Levelling down humans?
4. Rights without obligations
G. Benefits of rights for animals
1. Transformation
2. The obligation to justify
3. Remedies
(a) The standing requirement
(b) Procedural equality of arms
(c) Access to court through standing without rights
(d) Animal rights generating broad standing
4. Reparation
H. Making animal rights work
1. For which animals?
(a) Avoiding speciesism
(b) Avoiding ableism
(c) Sentience as a bottom line
(d) Species membership as heuristics
2. Which rights?
3. Addressees of animal rights and the public/private split
4. Lawful restrictions of animal rights
5. Form and process of endorsement
(a) Animal rights through dynamic interpretation?
(b) Shortcomings of national codifications
(c) International endorsement strategies
I. Conclusions
Chapter VIII. Towards a global animal protection law
A. Introduction: Public international law as a problem for animals
B. Building a global overlapping consensus on animal welfare
1. Global animal welfare aligned with human development
(a) The African Union’s animal welfare strategy
(b) Improvement of animal welfare as work towards the sustainable development goals
2. Animal welfare as a matter of global justice
3. Interim conclusions: Lining up ethics and economy
C. The risk of legal imperialism
1. Challenges
2. Responses
D. Public international law as part of the solution
1. Pending legal policy proposals and strategic litigation
2. Wild animal welfare in conservation treaties
3. An international customary rule and general principles of animal welfare
4. Legal consequences of a global animal welfare norm
E. Taking animals seriously in lawmaking processes
1. Is “representation” (speaking for) animals possible?
2. The design of representation
3. Counter-majoritarian elements, notably animal rights
F. Conclusions
1. International law as a mixed blessing
2. Prospects
3. Making animal law work
Bibliography