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Oxford Public International Law
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Air law and law of outer space
Diplomacy and consular relations
History of international law
Human rights
Immunities
Individuals and non-state actors
International co-operation
International criminal law
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International environmental law
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Settlement of disputes
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Oxford Law Citator
Contents
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Preliminary Material
Foreword
Acknowledgements
Contents
List of Contributors
List of Abbreviations
List of Cited GATT Panel and Working Party Reports and their Common Abbreviations
List of Cited WTO Panel and Appellate Body Reports, Other Initiated WTO Disputes, and their Common Abbreviations
Table of Cases
GATT Panel and Working Party Reports
WTO Panel and Appellate Body Reports and Other Initiated WTO Disputes
Other Jurisdictions International Courts/Arbitral Bodies
Permanent Court of International Justice
International Court of Justice
International Labour Organization Administrative Tribunal
International Centre for Settlement of Investment Disputes
UN Commission on International Trade Law
Other
Regional Courts: Americas
Inter-American Court of Human Rights
Mercosur
NAFTA
Regional Courts: Europe
Court of First Instance
European Court of Justice
European Commission
European Court of Human Rights
Main Text
Ch.1 Introduction
Part I The Economic and Institutional Context of the World Trading System
Ch.2 The Evolution of the World Trading System — the Economic and Policy Context
I Introduction
II The Basis for Trade
A Trade: An Overview
B Intellectual Argument for Trade
III Trade in the Period 1860–1913
A Significance of the Cobden-Chevalier Treaty
B Pattern of Bilateral Treaties and MFN
IV Breakdown of the International Trade System
A World War I and Its Aftermath
B The US Smoot-Hawley Tariff
V The GATT Regime
A GATT Creation and Objectives
B GATT Negotiations: 1947–79
VI The Uruguay Round Negotiation
A International Trade in the Early 1980s
B The Accomplishments of the Uruguay Round Negotiation
C Economic and Policy Context of the Uruguay Round
VII The World Trade Organization
A Operation of the WTO
B Developing Countries and the Doha Round
VIII The Future of the World Trading System
Selected Bibliography
Ch.3 The Evolution of the World Trading System — the Legal and Institutional Context
I Introduction and Overview
II GATT and Its History, Including Its ‘Birth Defects’
III GATT Fills the Vacuum: 47 Years of Provisional Application
IV The Uruguay Round and the Birth of the WTO
V WTO Legal and Institutional Structure
A The Uruguay Round Treaty Structure for the WTO
B Institutional Structure
C WTO Decision-Making
VI The Trial and Error Pragmatic History of the GATT Dispute Settlement System and the Uruguay Round Makeover
VII Perceptions, Implications, and Conclusions
Selected Bibliography
Ch.4 The Place of the WTO in the International System
I Introduction
II The WTO as a Legal Institution
A The Intention of the WTO Members
B The Organs of the WTO
C The Functions of the WTO as an Organization
D The Implications of Legal Personality
III The WTO and other Intergovernmental Institutions
A The WTO and the UN System
B The WTO and Regional Economic Arrangements
IV The WTO and Non-Governmental Organizations
V The WTO as a Participant in the Application and the Development of International Law
VI Constitutionalism and the WTO
VII Conclusion
Selected Bibliography
Part II Substantive Law
Ch.5 WTO Institutional Aspects
I Introduction
II The WTO as an International Organization ‘Lite’
III Overview of the Structure of the WTO
IV Questions Raised by the Overview of the WTO Institutional Structure
V Powers and Practice of Different WTO organs
A Methods of Decision-Making
B The General and Specific Powers of the MC, Also When Exercised by the GC
C The General and Specific Powers of the GC and Its Emanations
D The Powers and Practice of the GATS Council and Its Subordinate Bodies
E The Powers and Practice of the TRIPS Council
F The Powers and Practice of the CTG and Its Subsidiary Bodies
G The Question of Attributed Powers v. Implied Powers: Examples in the Field of Trade in Goods
H Concluding Remarks about the Plenary Organs, Their Inter-relationship, and Decision-making
VI The Absence of Non-Plenary Organs
VII The DG and the Secretariat
A The DG
B The Secretariat
VIII Some Institutional Aspects of WTO Dispute Settlement
A The DSB
B The GC
IX Conclusion
Selected Bibliography
Ch.6 Gatt
I Introduction
II Disciplines on Trade Instruments
A The Scope of Article XI GATT 1994 Per Se Prohibitions on Restrictions on Importation and Process Standards
B Tariff Reduction Under the GATT 1994 and the Doha Round Negotiations on Non-Agricultural Market Access
III Disciplines on Domestic Instruments
A Language, Effect, Inherence, and Intent: Different or Concurrent Ways of Understanding Article III National Treatment Obligation?
B ‘Cost-Effectiveness Test’ versus ‘Cost-Benefit Balancing’ under Article XX?
IV Disciplines on State Contingencies
A Balance of Payments (Articles XII and XVIII GATT 1994) and Exchange Restrictions (Article XV GATT 1994): What Role for the IMF?
B Emergency Safeguards and the ‘Unforeseen Development’ Requirement in Article XIX GATT 1994: the Relationship between Article XIX GATT 1994 and the Safeguards Agreement
V Conclusion
Selected Bibliography
Ch.7 Gats
I Introduction
II The GATS in the Post-Uruguay Round Period
A The Outcomes of the Uruguay Round
B Sectoral Negotiations in the Immediate Aftermath of the Uruguay Round
C Negotiations on ‘Rules’
D The GATS 2000 Negotiations and the Doha Round
E GATS-related Dispute Settlement
III Explaining Post-Uruguay Round GATS Practice
A Lack of Basic Data to Guide Negotiators
B Lack of Shared ‘Scripts’ to Give Comfort to Regulators
C Uncertainty in the Application of GATS Law
IV Implications and Conclusion
Selected Bibliography
Ch.8 Trips
I The Nature of the TRIPS Agreement
II Developments to Date
A Dispute Settlement
B Access to Medicines and Public Health
III Outstanding Issues
A Exhaustion and Parallel Imports
B Anti-competitive Practices
C Geographical Indications
IV Beyond the WTO
A WIPO
B TRIPS-plus in FTAs
C A Human Rights Approach to TRIPS
V Conclusion
Selected Bibliography
Ch.9 Responding To National Concerns
I Introduction
II Comparing the Disciplines of the SPS Agreement, the TBT Agreement, and the GATT 1994
A Non-Discrimination: National Treatment and Most-Favoured-Nation
1 GATT
(a) Article III GATT — National Treatment Obligation
(b) Most-Favoured-Nation Principle
2 TBT Agreement
3 SPS Agreement
B Necessity Tests
1 The Necessity Test in the GATT 1994
(a) The Test Under Article XX(g) GATT 1994
(b) The Chapeau of Article XX GATT 1994
2 TBT Agreement
3 SPS Agreement
C Appropriate Level/Scientific Basis
1 SPS Agreement
2 TBT Agreement
3 The GATT 1994
D Harmonization, Conformity with International Standards
1 SPS Agreement
2 TBT Agreement
3 The GATT 1994
E (Mutual) Recognition and Equivalence
1 SPS Agreement
2 TBT Agreement
3 The GATT 1994
F Internal Consistency
1 SPS Agreement
2 TBT Agreement
3 The GATT
G Permission for Precautionary Action
1 SPS Agreement
2 TBT Agreement
3 The GATT 1994
H Balancing
1 The GATT 1994
2 TBT Agreement
3 SPS Agreement
I Product/Process Issues and the Territorial—Extraterritoriality Divide
1 The GATT 1994
2 TBT Agreement
3 SPS Agreement
III Application of the Agreements
A The GATT 1994 Versus the SPS Agreement
B The GATT 1994 Versus the TBT Agreement
C The SPS Agreement Versus the TBT Agreement
IV Conclusion
Selected Biblography
Ch.10 Regional Trade Agreements
I Introduction
II The Benefits and Costs of Regionalism
A Likely Benefits
B Likely Costs
1 Inherent Discrimination
2 Rules of Origin
3 The ‘Spaghetti Bowl’ Problem
4 Negotiating Imbalances, Administrative Costs, and Geography
5 An Inconclusive Debate?
III Regional Trade Regimes and the WTO System
A History of Article XXIV GATT 1994
B Requirements of Article XXIV and GATT/WTO Review
1 Definitional Issues
2 Substantive Requirements
3 Procedural Requirements
C Special Standards for Developing Countries: The ‘Enabling Clause’
D RTAs and the GATS
IV Conflicts Between the WTO and RTAs
A Scope of Article XXIV GATT 1994
1 Turkey — Textiles
2 Brazil — Retreaded Tyres
3 Argentina — Footwear (EC) and US — Steel Safeguards
B Conflicts Between WTO and RTA Dispute Settlement Mechanisms
1 Mexico — Tax Measures on Soft Drinks
2 NAFTA, US Safeguards — Brooms
3 The Softwood Lumber Dispute
V Conclusions
Selected Bibliography
Part III Settlement of Disputes
Ch.11 The Institutional Dimension
I Introduction
A Origins
B Underlying Principles
C Discussions on Reforming Dispute Settlement Procedures
II The Institutions
A Director-General of the WTO
B DSB
C Panels
D Appellate Body
E WTO Secretariat
F Appellate Body Secretariat
III Some Future Challenges
Selected Bibliography
Ch.12 Jurisdiction, Applicable Law, and Interpretation
I Introduction
II The Jurisdiction of WTO Panels and the Appellate Body
A Compulsory, Exclusive, Not General
B Jurisdiction Over Facts and Law
C Conflicts of Jurisdiction
D Inherent Powers
III Applicable Law in WTO Dispute Settlement
IV Treaty Interpretation in WTO Dispute Settlement
A Principles of Treaty Interpretation
B The DSU and Treaty Interpretation
C Contextual and Effective Interpretation
D Harmonious Interpretation of the WTO Covered Agreements
E Special Principles of Treaty Interpretation
F Authentic Interpretation Versus Judicial Interpretation
V Conclusion
Selected Bibliography
Ch.13 Procedural and Evidentiary Issues
I Introduction
II The GATT 1947 and the Uruguay Round DSU
III WTO Dispute Settlement Procedures
A General Characteristics
1 Objectives
2 Automatic and Exclusive Jurisdiction
3 Uniformity of Procedures, but with the Option of Using Alternative Means of Dispute Resolution
4 Decentralized Enforcement under Collective Supervision
B Consultations
C Panel Proceedings
1 Overview
2 Significant Procedural Issues
Preliminary Rulings
Burden of Proof
Evidentiary Issues
Standard of Review
Rights of Third Parties
Transparency
Representation by Private Counsel
Judicial Economy
D Appellate Review
1 Overview of Appeal Procedures
2 Some Significant Procedural Issues
Preliminary Rulings
Scope of Appellate Review
Transparency
Lack of Remand Power and Completion of the Analysis
E Implementation
Prompt Compliance and Reasonable Period of Time for Implementation
Compliance Proceedings
Countermeasures and Arbitration on their Level and Nature
DSB Surveillance
VI Conclusion
Selected Bibliography
Ch.14 Standard of Review in WTO Law
I Introduction
II What Is Standard of Review?
III The General Standard of Review in WTO Law
IV The Standard of Review For The Different Tasks Performed By Panels
A Legal Determinations
1 A Panel’s Review of Legal Determinations in General
2 A Panel’s Review of Legal Interpretations under the Anti-Dumping Agreement
B Factual Determinations
1 A Panel’s Review of Factual Determinations in General
2 Trade Remedy Agreements
a Anti-Dumping Agreement
The Standard for Reviewing Purely Factual Questions
The Standard for Reviewing Mixed Questions of Fact and Law
The Temporal Constraints on the Panel’s Review of the Facts
The Rationale for Making the Authority the Trier of First Impression for Facts and the Panel the Reviewer of Fact
b Safeguards Agreement and SCM Agreement
c The Standard for Reviewing Factual Determinations under the Trade Remedy Agreements Must Respect the Division of Responsibilities between Investigating Authorities and Panels
There Is No De Novo Review of an Authority’s Determination
An Example of De Novo Review: Japan — DRAMS (Korea)?
d The Standard of Review of Trade Remedy Measures Is Influenced by the Particular Obligation at Issue
Review of Procedural Obligations — A ‘Check List’ Approach
Review of Substantive Obligations — The Reasoned and Adequate Explanation
3 TBT and SPS Agreements
a TBT Agreement
b SPS Agreement
4 The GATT 1994
5 The Standard of Review Applicable to Domestic Law
a Domestic Law Is an Issue of Fact
b Do Panels and the Appellate Body Apply a Deferential Standard of Review in Determining the Meaning of Domestic Law?
c Domestic Law as ‘Evidence of Compliance’
V The Appellate Body’s Standard For Reviewing Decisions By Panels
A General Considerations
B The Appellate Body’s Review of a Panel’s Purely Legal Findings
C The Appellate Body’s Review of a Panel’s Purely Factual Findings
1 Substantive Review of a Panel’s Assessment of the Facts
2 Procedural Review of a Panel’s Assessment of the Facts — Reasoned and Adequate Explanation
D The Appellate Body’s Review of a Panel’s Application of Law to the Facts
VI Conclusion
Selected Bibliography
Ch.15 Remedies and Compliance
I Introduction
II State Responsibility and Self-Contained Legal Systems
III Binding or Non-Binding?
IV The Basic Function of Dispute Settlement
V ‘Bring Into Conformity’ — Prospective or Retrospective?
VI Remedies in Case of Continued Non-Compliance
VII Compliance and Municipal Law
VIII Conclusions
Selected Bibliography
Ch.16 The Limits of Judicial Processes
I Introduction
II Judicial Processes versus Consultation, Mediation, and Conciliation: Compatible Alternatives?
III WTO Dispute Settlement and Ambiguous Texts
IV WTO Dispute Settlement in the Setting of Sovereign States
V WTO Dispute Settlement and Judicial Overreaching
VI Conclusion
Selected Bibliography
Part IV Trade and … The New Agenda and Linkage Issues
Ch.17 Trade and Development
I Introduction
II Overview of GATT 1947 and WTO Law Addressing Developing Countries
III Legal Evaluation of the Integration of Developing Countries in the WTO Legal Regime
A The Participation of Developing Countries in WTO Dispute Settlement
B Commonly Identified Constraints Limiting Developing-Country Participation in WTO Dispute Settlement
1 Lack of Legal Expertise and Financial Resources
2 Lack of Domestic Mechanisms to Identify and Act against Trade Barriers
3 Low Levels of World Trade and Small Domestic Markets
4 Fears of Political and Economic Pressures
C The Reality that a Significant Portion of Developing-Country Trade Occurs Under Rules that Are Not Part of Enforceable WTO Law
1 The Limited Scope of Enforceable WTO Law
2 Many Rules Governing Developing-Country Trade Are Not Part of Enforceable WTO Law
IV Conclusion
Selected Bibliography
Ch.18 Trade And Environment
I Introduction
II Relationships Between Free Trade and Environmental Protection
A The Physical and Economic Effects of Free Trade on the Environment
1 Positive Effects
2 Negative Effects
B Conflicts Between the Trade and Environmental Regimes
III History of Trade and Environment Issues
A Early History in the GATT 1947
B Emergence of Conflict: The Tuna/Dolphin Cases
C Developments in the WTO
IV Factors in Assessing Environmental Measures
A Is an Environmental Measure Specifically Directed at Trade?
B What Is the Function of an Environmental Measure?
C Is a Measure Multilateral or Unilateral?
D Is an Environmental Measure Extraterritorial?
E Is an Environmental Measure a Product Standard or a PPM Standard?
F Does an Environmental Measure Have a Scientific Basis?
V Ways of Addressing Trade and Environment Issues
A Adjudicative Approaches
1 Interpretation of Existing Trade Rules through WTO Dispute Settlement
2 Creating a More Neutral Forum for Dispute Resolution
B Negotiated Approaches
1 Amendment of the Trade Regime
2 Development of Common Environmental Standards through a Global Environmental Organization
VI Conclusion
Selected Bibliography
Ch.19 Trade and Labour
I Introduction
A From the ITO to the WTO on Labour Issues
B States Must Comply With Both Their WTO and ILO Obligations
C The Legal Relationship Between Trade and Labour
II The WTO and Labour Considerations — The Multilateral Dimension
A Interpretation of the WTO
B Several Labour-Related Measures Possible in the WTO Single Undertaking
C GATT 1994 and Labour Considerations
1 Non-Discrimination: Most-Favoured-Nation (Article 1) and National Treatment Principles (Article III)
a Likeness
b Less Favourable Treatment
2 Article II GATT 1994: Labour Conditions in Tariff (Goods) Schedules?
3 The Exceptions of the GATT 1994: Can Labour Considerations Justify Inconsistencies with Provisions of the GATT?
a Measures Necessary for the Protection of Public Morals
b Measures Necessary for the Protection of Health of Persons
c Measures Relating to the Product of Prison Labour
d Consistency with the Chapeau of Article XX GATT 1994
4 The WTO Dispute Settlement Cannot Be Used to Enforce Non-WTO Violations
D TBT Agreement
1 WTO Legitimate Objectives
2 Members’ Technical Regulations Based on Existing International Labour Standards?
3 Does the TBT Agreement Cover Labour-PPMs?
4 Labels
5 Voluntary and Private Standards
E Agreements on Trade Remedies
F The GATS and Its Schedules
1 Same Issues as With the GATT 1994
2 GATS Schedules
G The Agreement on Government Procurement and Its Schedules
1 The WTO Agreement on Government Procurement (GPA)
2 GPA Schedules
H Trade Policy Review Mechanism (TPRM)
III Regional Trade Agreements and Labour Considerations
A Conditions for a WTO-Consistent RTA
B An Example: The US — Peru FTA
1 Are Labour Standards Internal or External Restrictions That Would Be WTO-(In)Consistent (Art XXIV: 5 and :8)?
2 Can an RTA Party Impose (WTO-Consistent) Trade Restrictions Against Another RTA Party When Called Upon To Do So Under the Terms of Their RTA for Violations of the RTA Labour Provisions?
IV Can Labour Considerations Condition WTO-Consistent Preference Schemes?
V Conclusions
Selected Bibliography
Ch.20 Trade and Human Rights
I Introduction
A Positive Links
B Outline of Chapter
II Human Rights Impacts of Trade Policies on Other Countries
III Costs of Trade Liberalization
A Costs to the Liberalizing Country
B Costs to Third Country Consumers
C Trade and Human Rights Approaches to the Costs of Liberalization
D Trade Regimes
IV Trade Rules and the Regulatory Powers of the State to Pursue Human Rights Objectives
A Introduction
B Trade Regimes
1 Human Rights Exceptions and Defences
2 Rules on Discrimination
3 Rules on Domestic Regulation
4 Privatization and Deregulation
5 Intellectual Property
V Institutional Responses to the Relationship between Trade and Human Rights
VI Conclusion
Selected Bibliography
Ch.21 Trade and Health
I The WTO and Health
II The SPS Agreement
A Introduction — Relation to the GATT 1994
B Preference for International Standards
C Risk Assessment and Scientific Basis
D Precautionary Principle
E Appropriate Levels of Protection
1 Less Trade-Restrictive Means
2 Consistency
3 Equivalency
F Other Features of the SPS Agreement
III Health Measures and GATT 1994 Disciplines
A Health Measures and Article III:4 GATT 1994
B Health Measures and Article XI GATT 1994
IV Justifying National Health Measures under Article XX GATT 1994
A Introduction
B Identification of Qualifying Measures Under Article XX(b) GATT 1994
1 Measures Protecting Human, Animal or Plant Health or Life
2 Measures ‘Necessary’ to Protect Health
3 Satisfying Article XX(b) GATT 1994 by Operation of the SPS Agreement
C The Chapeau of Article XX GATT 1994 and Health Measures
V Conclusion
Selected Bibliography
Ch.22 Trade And Investment
I Introduction
II Background
III WTO Rules Pertaining to Investment
A GATT 1947
B TRIMS Agreement
C GATS
IV OECD
V Investment Agreements
A Non-Discrimination
B Minimum Standard of Treatment
C Expropriation
D Dispute Settlement
VI What Does the Future Hold for Investment Protection?
VII Conclusion
Selected Bibliography
Ch.23 Trade And Competition Policy
I Introduction — Philosophy Common to Competition Policy and the WTO
II Provisions in the WTO Agreements Relating to Competition Policy
III Transnational Business Activities and National Competition Laws
A Extraterritorial Application of Competition Laws
B US Antitrust Laws
C EC Competition Law
D Other Jurisdictions
E Is the WTO an Appropriate Forum for Competition Policy Discussion?
IV The WTO Dispute Settlement System and Competition Policy
A Japan — Photographic Film
B US — 1916 Act
C Canada — Dairy (Article 21.5 — New Zealand and US)
D Mexico — Telecoms
E Trade Remedies and Competition Policy
1 Voluntary Export Restraints
2 The Relationship Between Anti-dumping and Antitrust
V Competition Policy and International Cooperation in the WTO
VI Conclusion
Selected Bibliography
Part V The Wider Framework
Ch.24 WTO and Civil Society
I Introduction
II Civil Society in the Early Twenty-First Century
A What is Civil Society in a Globalized World?
B Examples of NGOs Active in the Trade Arena
III Good Governance in International Organizations
A Linkages between Legitimacy, Transparency, and Participation
B International Human Rights Law and the Right of Access to Information
C International Environmental Law and Public Participation
IV Transparency and Participation in the WTO
A Institutional Operation
B Capacity-Building
C WTO Negotiations
D Participation in WTO Dispute Settlement
E Transparency in WTO Dispute Settlement
V Conclusion
Selected Bibliography
Ch.25 International Trade Law, United Nations Law, and Collective Security Issues
I Introduction
II Economic Sanctions and Security Exceptions: An Open Door?
III UN Economic Interventionism: Reconciling WTO and UN Law
A UN Economic Sanctions Under WTO Law: The Derogations Permitted by Article XXI (c) GATT 1994
1 Elements of UN Practice
2 Economic Considerations Linked to the Resort to UN Sanctions
3 UN Sanctions and Article XXI (c) GATT 1994
B Framing UN Economic Intervention: The Need to Integrate WTO and International Economic Law Principles
1 Reconstruction of Economies by UN Peace-building Operations
a The Economic Mandate of UN Missions: The Case of Ivory Coast
b The UN Peacebuilding Commission: A Promising Institutional Tool
2 International Administration of Territories by the UN
3 The Occupation of Iraq and the UN Resolution 1483
IV WTO and the Arms Trade: The Case of Small Arms
V Conclusions: The Need for a New Approach?
Selected Bibliography
Ch.26 Regulating Multinational Corporations and International Trade Law
I Introduction
II The Concept of Corporate Accountability
A Shareholder Primacy
B Accountability to Other Stakeholders
1 Corporate Social Responsibility
2 Questions Raised by Corporate Social Responsibility
3 Corporate Social Responsibility as a Regulatory Issue
a CSR in Developed Legal Systems
b CSR in Underdeveloped Legal Systems
III Implications for the Multilateral Trade Regime
A Conditioning Market Access
1 Approaches to Linkage
2 Objections to Linkage
B Beyond Conditioned Market Access
1 Retooled Investor-State Dispute Settlement
a Conditional Access to Remedies
b Expanded Standing
2 Punitive Measures
a Domestically-Enforceable International Corporate Obligations
b Smart Sanctions
IV Conclusion
Selected Bibliography
Conclusion
Ch.27 Law, Culture, and Values in the WTO — Gazing into the Crystal Ball
I Gazing into the Crystal Ball — Premise and Methodology
II WTO — A Constitutional Future?
III The Global v The Regional
IV Aims and Deep Effects
A Core Identity in Core Doctrine: Premise
B The Legislative Matrix
C Methodology One — The ‘Objective’ Approach
D Methodology Two — Effect and Purpose (‘Aims and Effect’)
E Methodology Three — Alternative Comparators
F Beyond Hermeneutics
G Effects and Aims — The Ontological Dimension
H The Evolution of Identity and Its Future
Further Material
Index
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Acknowledgements
Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme
From:
The Oxford Handbook of International Trade Law
Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Handbooks in Law
Published in print:
08 January 2009
ISBN:
9780199231928
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