Moshe Hirsch

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Papers by Moshe Hirsch

The Asymmetric Incidence of Rules of Origin – Will Progressive and Cumulation Rules Resolve the Problem?

Journal of World Trade

Identity Matters: The Enforcement of Global Human Rights Treaties by European Union's Trade Instruments

International Economic Law eJournal, 2016

The EU employs certain trade instruments (mainly regional trade agreements and trade preferences ... more The EU employs certain trade instruments (mainly regional trade agreements and trade preferences granted to developing countries) to promote compliance with global human rights law. The use of these trade mechanisms to enforce global human rights law is significantly motivated by the collective identity and perceived social role of the EU in the international community as a promoter of human rights worldwide. These EU identity-driven measures may also affect the identity of international actors targeted by such measures. Economic and political dimensions of international law are often overlain with a social identity dimension. While in reality, these dimensions are inseparable, this chapter is devoted to a social identity analysis of the EU’s employment of external trade instruments to promote human rights worldwide. This analysis sheds light on the enactment of EU trade policies in this sphere, their employment, and their potential to enhance compliance with international human rig...

Social memory and the impact of commemorative remedies ordered by the Inter-American Court of Human Rights

Leiden Journal of International Law

Social memory studies start from the premise that people acquire their memories not only through ... more Social memory studies start from the premise that people acquire their memories not only through individual means, but through social processes as well. Social groups often provide materials for memory, and prod individuals into recalling particular events. One of the distinctive differences between the practice of the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) concerns memory-related remedies. While the IACtHR quite frequently orders respondent states to commemorate grave violations of human rights (including the construction of monuments), the ECtHR has refrained from granting such commemorative remedies. Some organizations representing victims have called upon additional tribunals to embrace the IACtHR’s remedial approach to address grave breaches of international law. Drawing on social memory scholarship, this study is aimed at empirically assessing the impact of four sites of memory in Colombia established by order of the IACtHR...

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Cognitive Sociology, Social Cognition and Coping with Racial Discrimination in International Law

Social Science Research Network, 2020

Cognitive science is the interdisciplinary study of mental processes involved in the acquisition,... more Cognitive science is the interdisciplinary study of mental processes involved in the acquisition, classification, organization and interpretation of knowledge in the human environment as well as the decision taken on the appropriate action based upon it. The point of departure is that people do not directly sense information; cognitive processes mediate between sensory input from the environment and behaviour. These cognitive processes are influenced by neurological, psychological, socio-cultural and other factors. In recent years, there has been growing scholarly interest in the study of cognitive sociology, focusing on the interactions between culture and cognition. This stream in sociological literature draws upon and complements cognitive psychological literature. The prohibition on discrimination constitutes one of the fundamental rules in international human rights law, but studies reveal that racial discrimination is pervasive and persistent in many states. Non-compliance with this international legal rule is significantly related to cognitive processes through which people acquire and interpret incoming information about other people. Racial groups are socially constructed and deeply ingrained socio-cognitive biases feed and reproduce racially discriminatory behaviour. These biased mental processes, however, are not inevitable and may change over time. Effective struggle against racial discrimination requires that international legal mechanisms also address the socio-cognitive infrastructure that facilitates and sustains racial discrimination. Consequently, this study also discusses some international legal strategies aimed at mitigating cognitive biases and enhancing compliance with treaties prohibiting racial discrimination.

Regulators’ Mindsets, Ingroup Favoritism, and the National Treatment Obligation in World Trade Organization Law

German Law Journal

Decision-making processes leading to governmental measures affecting international trade involve ... more Decision-making processes leading to governmental measures affecting international trade involve socio-cognitive processes, biases, and sociocultural factors. The legal prohibition of discrimination against imported products constitutes a fundamental principle of World Trade Organization (WTO) law, but discrimination against foreign products is widespread. This study explores the contribution of social cognitive and sociological literatures to international trade scholarship concerning the “national treatment” obligation. Ingroup favoritism bias, related cognitive biases, such as confirmation bias, and sociocultural processes, such as “loyalty norms”, facilitate and support discrimination against foreign products.One of the most contested issues regarding the interpretation of GATT Article III concerns the role of regulators’ intention in establishing a violation of this provision. The approach undertaken by the WTO Appellate Body is characterized by a preference for the “objective”...

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Future Negotiations over Jerusalem, Strategical Factors and Game Theory, The

Cath. UL Rev., 1995

for their valuable comments. The views expressed in this article are the author's alone. under in... more

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The Legal Status of Jerusalem Following the ICJ Advisory Opinion on the Separation Barrier

Israel Law Review, 2005

The present article analyzes the expected implications of the recent Advisory Opinion of the Inte... more The present article analyzes the expected implications of the recent Advisory Opinion of the International Court of Justice on the legal status of East Jerusalem in accordance with international law. The Court stated that East Jerusalem is occupied territory and Israel is the occupying power in this territory. Generally, the Opinion lends support to the Palestinians' arguments and is likely to enhance their bargaining position in the future negotiations regarding the regime to be applied to East Jerusalem. Unlike the differential approach undertaken by the parties during the recent stage of negotiations (that suggested applying different legal regimes to the city's different areas), the Court's Opinion did not make distinction between the different parts of East Jerusalem. Analysis of these distinct approaches indicates that the differential approach (adopted during the recent negotiations)is more likely to enhance the prospects of attaining an agreed solution to the dis...

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Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

Leiden Journal of International Law, 2020

The recent moderate trend to increasingly apply human rights law in investment awards is accompan... more The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in...

Treaty-Making Power: Approval of the Israel-Egypt “Philadelphi Accord” by the Knesset

Israel Law Review, 2006

The controversy regarding the need to present the recent Israel-Egypt "Agreed Arrangements Regard... more The controversy regarding the need to present the recent Israel-Egypt "Agreed Arrangements Regarding the Deployment of a Designated Force of Border Guards Along the Border in the Rafah Area" (Philadelphi Accord) to the Knesset approval brought to the fore several interesting questions regarding treaty-making power under the Israeli law. The Philadelphi route is a fourteen kilometer strip running along the border between Egypt and the Gaza Strip, from the Mediterranean Sea coastline to the point opposite Kerem Shalom (the Northern border crossing between Israel and Egypt). Following Israel's decision to withdraw its forces from Gaza Strip ("the Disengagement Plan"), 1 Israeli officials were concerned that Palestinians would smuggle in weapons from neighboring Egypt to Palestinian terrorists. While under the original Disengagement Plan Israeli forces were to be deployed along the Philadelphi route, 2 the Israeli's interest to free itself of the responsibility for the Gaza Strip led it to conclude the Philadelphi Accord with Egypt. 3 Under the Philadelphi Accord, Egypt was authorized to deploy 750 border guards opposite the Philadelphi route to patrol the border on its side, and prevent arms smuggling from Sinai (Egypt) to the Gaza Strip, infiltration and other criminal ' Arnold Brecht Chair in European Law, Faculty of Law and Department of International Relations, the Hebrew University of Jerusalem. Thanks to Ruth Lapidoth who contributed valuable comments on earlier draft and to Yehuda Herbest for excellent research assistance. 1 See The Cabinet Resolution Regarding the Disengagement Plan, 6 June 2004, available at http:// www.mfa.gov.il/MFA/Peace+Process/Reference+Documents /Revised+Disengagement+Plan+6-June-2004.htm (last visited September 9, 2006). 2 Article 3.1 of the Disengagement Plan provides that "the State of Israel will evacuate the Gaza Strip, including all existing Israeli towns and villages, and will redeploy outside the Strip. This will not include military deployment in the area of the border between the Gaza Strip and Egypt ('the Philadelphi Route') as detailed below."

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The Sociological Dimension of International Law

SSRN Electronic Journal, 2015

This article is the introduction to the book 'Invitation to the Sociology of International La... more This article is the introduction to the book 'Invitation to the Sociology of International Law' (OUP, 2015). International law is deeply embedded in various sociological factors and processes. Numerous international legal rules reflect and affect societal factors and processes such as norms, socialization, identity, and collective memory. Political and economic dimensions of international law are overlain with a sociological dimension, but this study focuses on the sociological dimension of international law. While the idea that international law and other societal processes are profoundly interlinked is not new, international legal literature habitually pays only scant attention to socio-cultural aspects of international law. In light of the underlying interrelationships between international law and other social factors, the book invites international law specialists to analyse international legal rules in their wider social context, and incorporate sociological tools into mainstream international law scholarship.The book aims to introduce readers to some key sociological elements and major theoretical approaches, and illustrates their valuable contribution to international legal scholarship. To exemplify the properties of the sociological analysis, the book employs sociological tools to explore diverse topics in contemporary international law, including the World Trade Organization's (WTO) rules regulating regional trade agreements; legal fragmentation and the interaction between international investment law and human rights law; impartiality of adjudicators; compliance with and breach of international law; and the European Union's rules concerning economic and monetary cooperation.

Enhancing the Role of NGOs in the Global Arena: Towards a New Regime on International Labor Standards

The Welfare State, Globalization, and International Law, 2004

Non-state actors have been very active in the sphere of labor standards protection in the recent ... more Non-state actors have been very active in the sphere of labor standards protection in the recent decade. At times, when the states’ efforts failed to attain significant results, transnational corporations (TNCs), non-governmental organizations (NGOs), and trade unions have dominated the international scene. Indeed, the increasing influence of non-governmental bodies (as well as the weakening of sovereign states) is one of the salient features of the globalization process.’ This paper explores the prospects and perils of this trend and attempts to appraise the contribution of nongovernmental entities to the promotion of labor rights. In light of the conclusions drawn from the discussion, we will be able to suggest some means for the advancement of international labor rights protection.

Sources of International Investment Law

International Investment Law and Soft Law

ABSTRACT The paper discusses the sources of international investment law and comments on the spec... more

The Sociology of International Law: Invitation to Study International Rules in Their Social Context

University of Toronto Law Journal, 2005

† I am deeply indebted to my teachers on sociological theories, Gad Yair and Vered Vinitzki-Serou... more † I am deeply indebted to my teachers on sociological theories, Gad Yair and Vered Vinitzki-Seroussi of the Hebrew University Department of Sociology, who also contributed helpful comments on earlier drafts. I would like to thank Joseph Weiller, who encouraged me to explore this fascinating topic and with whom I consulted. I am grateful to Robert Howse for insightful comments on an earlier draft. I have also greatly benefited from inspiring discussions with Robert Howse, Edith Brown-Weiss, Anthony Arend, Benedict Kingsbury, and Yuval Shany. This study is largely based on research I conducted as a visiting scholar at the Georgetown University Law Center in spring 2003. I am grateful to the Center for the excellent facilities provided to me during that period. Thanks to Hadar Gonen for valuable research assistance. 1 Peter Berger, Invitation to Sociology: A Humanistic Perspective (Garden City, NY: Anchor Books, 1963) at 20-1 [Berger, Invitation]. 2 Thus, for instance, the sociological perspective was not included in the seven major methods of international legal scholarship that were presented in the 1999 Symposium on Methods in International Law published as a special issue of the American Journal of International Law: Steven R. Ratner & Anne-Marie Slaughter, eds., Symposium on Method in International Law: Appraising the Methods of International Law-A Prospectus for Readers (1999) 93 A.J.I.L. 291. 3 The relatively few scholars who wrote on the sociology of international law hardly employed sociological theories. For a concise discussion of this rudimentary socio-legal literature, see Edda Blenk-Knocke, 'Sociology of International Law' in Encyclopedia of Public International Law, vol. 4 (Amsterdam: North-Holland, 2000) 449. These early studies will be dealt with further below. (2005), 55 UNIVERSITY OF TORONTO LAW JOURNAL Moshe Hirsch* * THE SOCIOLOGY OF INTERNATIONAL LAW: INVITATION TO STUDY INTERNATIONAL RULES IN THEIR SOCIAL CONTEXT † An intellectual activity derives excitement from the moment it becomes a trail of discovery. ... The fascination of sociology lies in the fact that its perspective makes us see in a new light the very world in which we have lived all our lives. 1

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Whither Jerusalem?: proposals and positions concerning the future of Jerusalem

... Proposal by Professor Antonio Cassese (1986) 96 43. Proposal by Professor Thomas and Ms. Sall... more

Introduction: International Law’s Invisible Frames - Introductory Insights

SSRN Electronic Journal, 2021

Reply: Looking for a saviour in international investment law?

I am grateful to Silvia Steininger for her thought-provoking comments (‘From the Margins to the C... more I am grateful to Silvia Steininger for her thought-provoking comments (‘From the Margins to the Center – Can Social Movements Save International Investment Law?’). From the first time I encountered Silvia Steininger and her insightful publications on international investment law (see e.g. here and here), I realized she is an impressive researcher who is ready to challenge well-established perspectives and who truly enriches international economic law literature. Thus, I was not surprised that her comments have compelled me to rethink some taken-for-granted issues relating to my article. Since it is impossible to exhaustively address all issues raised in Steininger’s comments in such a short reply, I will briefly address the principal ones.

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Introduction: Sociological Perspectives on International Tribunals

Social Science Research Network, 2021

International tribunals are embedded in certain communities (e.g., regional, ideological, or prof... more International tribunals are embedded in certain communities (e.g., regional, ideological, or professional groups), and they reflect and affect socio-cultural patterns prevailing in those communities. While the work of tribunals involves numerous socio-cultural issues, this Introduction only briefly addresses certain interactions between tribunals and social factors and processes, primarily those relating to social functions, power relations, meanings, rituals, and interactionist processes. International tribunals emerge from and operate in particular social environments, influenced by and influencing the distinctive socio-cultural features of these communities. Tribunals enjoy some “comparative advantages” and are often perceived as more neutral than the rival parties because, inter alia, adjudicators are commonly drawn from multiple state-societies and tribunals employ some powerful symbols. The interactions between tribunals and their “social habitats,” as well as with other socie...

Between Fair and Equitable Treatment and Stabilization Clause

The Journal of World Investment & Trade, 2011

One of the most challenging questions in contemporary international Investment law relates to the... more One of the most challenging questions in contemporary international Investment law relates to the balance between the competing needs of allowing a reasonable policy space for host states and enabling foreign investors to plan their operations in advance. The central question addressed by this article is whether and under what circumstances should regulatory changes undertaken by host states constitute a breach of the fair and equitable (FET) clause.Contemporary investment law anchors the balance between those competing interests in the contractual and semi-contractual sphere. An analysis of investment tribunals case law on 'stable legal environment' (or 'regulatory framework') indicates that this term includes three central components: (i) contractual and semi-contractual arrangements (e.g., contracts, licenses, concessions); (ii) unilateral promissory statements or specific representations (often made in a contractual environment); and (iii) the host state's regulatory measures at the time of the investment. The first two components are certainly the predominant components of 'legal environment.' Investors expectations created either by contractual arrangements, semi-contractual arrangements or promissory statements - are considered 'legitimate expectations' and are protected by the FET principle. As for the third component, host states' regulatory measures alone are insufficient in forming legitimate expectations protected by FET clauses. Only when such regulatory measures are accompanied by additional and exceptional factors, may the combination thereof amount to a breach of legitimate expectations protected by the FET principle.A brief review of the primary functions of contractual arrangements indicates that contractual and semi-contractual instruments are suitable for the advance allocation of risks involved in regulatory changes

The 1995 Trade Agreement Between the European Communities and Israel: Three Unresolved Issues

European Foreign Affairs Review, 1996

The Logic of North-South Economic Integration: Integration Theories and Legal Mechanisms across the North-South Divide

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