“In this context the proposition that tools are prolongations of human organs can be inverted to state that the organs are also prolongations of the tools.”

I am deeply grateful to the American Society of International Law—especially to its president, Lucinda Low—and to the International Legal Studies Program at American University Washington College of Law—in particular, to the Dean of the College, Camille Nelson, and to its program director, David Hunter—for their generous invitation to deliver the nineteenth Annual Grotius Lecture. Grateful, but more than a little intimidated. Nobel laureates and heads of state, eminent judges and leading diplomats have given this distinguished lecture, but never, I think, a humble historian. As Isaac Newton might have said were he in my shoes, “[i]f I can see far, it is because I stand on the shoulders of these giants.”

In this presentation, I would like to focus on the latest developments concerning remedies established by the Inter-American Human Rights System (IAHRS), and offer some suggestions to reform both the content of reparations as well as the Inter-American Court's process for supervising reparations.

In 2010, Haiti's 7.0 magnitude earthquake resulted in more than 200,000 deaths and more than one million homeless. This event recaptured the attention of international society regarding disaster-related governmental policies and legislation. In 2011, Resolution 7 of the International Conference of the Red Cross reiterated the urgency for states to be prepared to facilitate and regulate any international disaster assistance, using the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (also known as the “IDRL Guidelines”). The International Conference adopted these guidelines in 2007; nevertheless, several countries did not implement the recommendations of the IDRL guidelines before the Haiti earthquake. Such was the case of Ecuador, which, after 2010, began to work on the implementation of the IDRL guidelines. In the beginning, public officials were very skeptical about the IDRL Guidelines as a tool for mitigating the consequences of disasters.

The principle of non-discrimination lies at the core of international economic law (IEL). The norm is classically instantiated across IEL in two recurrent principles: national treatment (NT); and most favored nation (MFN). NT prohibits vertical discrimination—where a state affords preferable treatment to its own nationals as compared to foreigners. MFN prohibits horizontal discrimination—where a state treats nationals from one foreign state better (or worse) than nationals from another. These principles are foundational in IEL, and thus both well-known and well-considered. Indeed, until recently, the questions of the day across IEL concerned to what extent international trade and international investment law have moved beyond the non-discrimination paradigm. Yet, we see a renewed and growing importance in these classical norms in the practice of IEL over the past few years—in both treaty-making and dispute resolution. The purpose of this roundtable is to discuss non-discrimination's renewed centrality across IEL, and the extent to which the scope and contours of NT and MFN may be in flux across its varied regimes.

When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.