Polanco: The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection?

Rodrigo Polanco (Universität Bern - World Trade Institute) has published The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection? (Cambridge Univ. Press 2019).

This book advances the idea that in order to address some of the criticisms against investor-state dispute settlement, a large majority of states have taken a 'normative' strategy, negotiating or amending investment treaties with provisions that potentially give more control and greater involvement to the contracting parties, and notably the home state. This is particularly true of agreements concluded in the past fifteen years. At the same time, there is a potential revival of the 'remnants' of diplomatic protection that are embedded in investment treaties since the beginning of the system. But why is the home state being brought back into a domain from which it was expressly excluded several decades ago? Why would a home state be interested in intervening in these conflicts? Is this 'new' role of the home state in foreign investment disputes a 'return' to diplomatic protection of its nationals, or are we witnessing something different?

Eppinger, Knop, & Riles: Diplomacy and Its Others: The Case of Korean Comfort Women

Monica E. Eppinger (Saint Louis Univ. - Law), Karen Knop (Univ. of Toronto - Law), & Annelise Riles (Cornell Univ. - Law) have posted Diplomacy and Its Others: The Case of Korean Comfort Women. Here's the abstract:

How can critical legal feminists find a way to respond, truthfully and ethically, to the horrors of wartime sexual slavery institutionalized in the Japanese military’s system of “Comfort Women,” while recognizing, at the same time, that claims on behalf of victims of sexual violence are often appropriated by nationalist, imperialist, and capitalist agendas? A first step is to understand how the bewildering range of political, legal, and cultural interventions that constitute the Comfort Women incident collide with one another, refashion one another, and give one another energy. Part of a larger project on the place of multi-situational law in an equally multi-situational politics, this brief presentation, as a very first step, identifies what we term the diplomatic style and analyses its collision with the constitutional law style in a landmark 2011 judgment of the Constitutional Court of Korea.

The Court found the Korean government liable for violating the constitutional rights of former Comfort Women because it has not used the dispute settlement procedure available under a 1965 bilateral treaty to seek compensation from the government of Japan. This result is in marked contrast to a 2010 Philippine decision on the equivalent issue as regards Filipina Comfort Women. In keeping with the reluctance of courts in many countries to intervene in foreign affairs, the Supreme Court of the Philippines held that the “political question” doctrine in domestic law prevented it from considering the wisdom of the Philippine government’s position that all postwar claims against Japan have been settled, and held, furthermore, that a state has no duty of diplomatic protection under international law.

We show that distinguishing diplomacy from other law/politics concerns that account for courts’ hands-off approach to foreign affairs helps us to think about the implications of the Korean Constitutional Court’s judgment. By injecting itself into diplomacy, and by taking on the responsibility for managing diplomatic tactics, the Court also makes itself relevant — and arguably vulnerable — to the constituencies to which diplomats have long been vulnerable. Whereas scholars often tend to treat law as a funnel for politics, the relationship of law to politics becomes (as with the relationship of diplomacy to politics) more of an eddy than a funnel. It is on this point, more than on the linkage of international rights to constitutional duties, that we perceive a glimmer of feminist hope in the decision.

Vigni: Diplomatic and Consular Protection in EU Law: Misleading Combination or Creative Solution?

Patrizia Vigni (Univ. of Siena) has posted Diplomatic and Consular Protection in EU Law: Misleading Combination or Creative Solution?. Here's the abstract:

Article 23 of the Treaty on the Functioning of the European Union (TFEU) provides for the right of EU citizens to diplomatic and consular protection by Member States other than the State of nationality in the territory of a third country. But what are the concepts of diplomatic and consular protection embodied in that Article? Are those typical of public international law or rather novel concepts with autonomous meaning derived from EU law? This paper addresses this question and examines what are possible effects of Article 23 in terms of opposability of the concept of EU citizenship to third states as well as in terms of justiciability of the EU citizen’s right to obtain protection from a non national Member State in a third country. The paper concludes that political and legal practice of the EU and of Member States has yet to provide clear answers to these questions.

Tams & Tzanakopoulos: Barcelona Traction: The ICJ as an Agent of Legal Development

Christian J. Tams (Univ. of Glasgow - Law) & Antonios Tzanakopoulos (Univ. of Glasgow - Law) have posted Barcelona Traction: The ICJ as an Agent of Legal Development (Leiden Journal of International Law, forthcoming). Here's the abstract:

This contribution revisits the International Court of Justice's landmark decision in the Barcelona Traction case forty years later. It evaluates two pronouncements that the Court made in the case, with respect to the nationality of corporations for purposes of diplomatic protection, and with respect to obligations erga omnes, from the perspective of the Court's importance as an agent for the development of international law.

Sloane: Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality

Robert D. Sloane (Boston Univ. - Law) has posted Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality (Harvard International Law Journal, forthcoming). Here's the abstract:

The concept of nationality serves indispensable functions in international law. It traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; and in contemporary international law, its roles have expanded. Yet apart from treaty constraints voluntarily assumed by states, today, as in the past, it remains unclear whether and, if so, how international law limits the otherwise almost plenary competence of states to confer their nationality by internal law in a way entitled to international recognition. After the International Court of Justice's (ICJ) 1955 judgment in Nottebohm, however, international lawyers began to express the limit purportedly imposed by general international law with a kind of doctrinal mantra: a state's national, to be a bona fide national entitled to recognition as such at the international level, must have a "genuine link" to that state.

This article critiques the genuine link theory and proposes a functional account of nationality, which, it argues, is descriptively more accurate and normatively more constructive. It first revisits Nottebohm in some detail in an effort to show that the generally accepted reading of that opinion, particularly as it has evolved into a doctrine of broad application, is triply misguide - first, on the opinion's own terms; second, in view of the positive international law of the era; and third, because of contemporary international law's evolution to respond effectively to the needs of the modern global political economy. Nottebohm is properly read as a narrow decision in which the ICJ tacitly invoked a general principle of law to prevent what it saw as a manipulative effort by the claimant, a German by birth, to evade a critical part of the law of war. The principle of abuse of rights, although casually dismissed by some dissents and contemporaneous commentators, better explains and justifies the opinion. If this is right, the ICJ did not, contrary to a view broadly held by both proponents and critics of Nottebohm, judicially legislate a novel rule regulating nationality by means of the genuine link doctrine.

Whatever the merits of this rereading of Nottebohm, today, the genuine link theory often proves anachronistic in view of changes in the diverse functions that nationality serves in international law. To illustrate, the article suggests that the general principle prohibiting abuses of rights - not coincidentally, the actual rationale for Nottebohm - would also be more appropriate and effective than the genuine link theory to regulate nationality in one contemporary context that has provoked debate recently: investor-state arbitration. But the abuse-of-rights principle is no panacea. The point of emphasis is that an atomized conception of nationality, which has been liberated from the genuine link theory, would better serve international policy in fields including international criminal law, human rights, E.U. law, and others. The article concludes that nationality, which is by definition an aggregate concept, should be candidly disaggregated by the functions it serves, and its international legal regulation should vary commensurately.

Amerasinghe: Diplomatic Protection

Chittharanjan F. Amerasinghe (Member, Institut de Droit International) has published Diplomatic Protection (Oxford Univ. Press 2008). Here's the abstract:

This book offers a juristic exposition and analysis of diplomatic protection as an institution of public international law. Diplomatic protection is primarily exercised by States towards their nationals, and exceptionally non-nationals, against violations of international law by other States, and is one of the oldest traditions of international law.

The book starts with a history of the subject, and charts the development of diplomatic protection conceived as an institution of international law. It goes on to discuss the violations of international law which can trigger diplomatic protection, arrangements which are excluded from this type of protection, conflicts of interests underlying the principle and how these can be resolved, and the influence of human rights on the area. Subsequent chapters look at attempts to codify the law of diplomatic protection, and offer a critical examination of this in the light of modern policy considerations, and the recent work of the International Law Commission. The book concludes with an assessment of recent changes in the law and the importance of these from the point of view of the individual.