The international investment regime is in crisis, nowhere more so than in regard to the investor–state dispute settlement system. While several developing countries have been critical of the system for some time, rich countries like the US and EU states—once the principal promoters of this regime—are now acknowledging problems and advancing reforms. This change of position has been fueled by the mobilization of civil society and the emergence of domestic populist movements on both the right and the left, reflecting widespread discontent with the past three decades of neoliberal globalization and its effects on job losses, lower wages, and increasing inequality. This article argues that this shift has opened up a unique opportunity for developing countries that want reform, as there is less pressure (real or imagined) from rich countries to continue with an old model that no longer serves. Two paths present a possible way forward: (a) Participating countries can disengage from investor–state dispute settlement and opt for the redomestication of international investment law, rekindling the Calvo doctrine, or (b) they can follow John G. Ruggie’s “embedded liberalism” to re-embed the international investment regime with values and social objectives that are now deemed politically indispensable. This article explores each of these paths, with a particular focus on Latin America. It argues that although populism creates pressures to change or abandon the regime, in developing countries it also generates constraints that may prolong the status quo.
The purpose of this book is to critically examine the activities of the International Criminal Court (ICC) on the eve of its 20th year of existence, with a focus on its relationship to the Rohingya crisis. This book is unique in that it identifies the potential and contemporary challenges of the ICC while focusing on the relationship between the Rohingya issue and the ICC. The relationship between the Rohingya crisis and the ICC is an issue that is fraught with contemporary challenges and worth dealing with. The relationship between the ICC and non-State Parties and the relationship between the ICC and high government officials are the examples of these challenges. Its novelty is to address the relationship between the Rohingya crisis and the ICC by staying current of information. The human rights situation of the Rohingya is of high international concern. With a case pending at the International Court of Justice (ICJ), not only individual criminal responsibility but also State responsibility may be sought for the most serious human rights violations. The Rohingya crisis itself is of great international concern, and it is expected that the issues will be discussed from the perspective of international human rights law, international humanitarian law, and international criminal law. Therefore, the structure of this book is as follows. First, it explains the history of the Rohingya crisis. Secondly, it touches on the relationship between the Rohingya crisis and the ICC. Thirdly, the book discusses the relationship between the ongoing case of Gambia v. Myanmar at the ICJ and the proceedings of the ICC. Finally, the book concludes with an assessment of the legitimacy, effectiveness, and efficiency of the ICC in recent years.
What constitutes a sovereign state in the international legal sphere? This question has been central to international law for centuries. Sovereignty, International Law, and the Princely States of Colonial South Asia provides a compelling exploration of the history of sovereignty through an analysis of the jurisdictional politics involving a specific set of historical legal entities.
Governed by local rulers, the princely states of colonial South Asia were subject to British paramountcy whilst remaining legally distinct from directly ruled British India. Their legal status and the extent of their rights remained the subject of feverish debates through the entirety of British colonial rule. This book traces the ways in which the language of sovereignty shaped the discourse surrounding the legal status of the princely states to illustrate how the doctrine of sovereignty came to structure political imagination in colonial South Asia and the framework of the modern Indian state.
Opening with a survey of the place of the princely states in the colonial structures of South Asia, Sovereignty, International Law, and the Princely States of Colonial South Asia goes on to illustrate how international lawyers, British politicians, colonial officials, rulers and bureaucrats of princely states, and anti-colonial nationalists in British India used definitions of sovereignty to construct political orders in line with their interests and aspirations. By invoking the vernacular of sovereignty in contrasting ways to support their differing visions of imperial and world order, these actors also attempted to reconfigure the boundaries among the spheres of the national, the imperial, and the international. Throughout the eighteenth, nineteenth, and early twentieth centuries, debates and disputes over the princely states continually defined and redefined the concept of sovereignty and international legitimacy in South Asia.
Using rich material from the colonial archives, Sovereignty, International Law, and the Princely States of Colonial South Asia conveys an understanding of the history of sovereignty and the construction of the modern Indian nation-state that is still relevant today.
The latest issue of the Michigan Journal of International Law (Vol. 44, no. 2, 2023) is out. Contents include:
Asset recovery is a fundamental principle of anticorruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset recovery mechanism that could provide myriad services to states on upon request, including gathering and publishing information, providing technical assistance and capacity-building, offering mediation services to help conclude agreements on asset return, and monitoring returned funds. Theoretically, we argue that such a flexible mechanism has advantages over formal international organizations to address this critical issue. Although more modest than efforts to create an international anti-corruption court, our proposal offers substantial benefits, including lower financial and political costs, enhanced adaptability, and a greater likelihood of enhancing interstate cooperation regarding asset returns.
The latest issue of the European Journal of International Law (Vol. 34, no. 1, February 2023) is out. Contents include:
Sprawled across the heartlands of Europe, the Habsburg Empire resisted all the standard theories of singular sovereignty. The 1848 revolutions sparked decades of heady constitutional experimentation that pushed the very concept of “the state” to its limits. This intricate multinational polity became a hothouse for public law and legal philosophy and spawned ideas that still shape our understanding of the sovereign state today. The Life and Death of States traces the history of sovereignty over one hundred tumultuous years, explaining how a regime of nation-states theoretically equal under international law emerged from the ashes of a dynastic empire.
Natasha Wheatley shows how a new sort of experimentation began when the First World War brought the Habsburg Empire crashing down: the making of new states. Habsburg lands then became a laboratory for postimperial sovereignty and a new international order, and the results would echo through global debates about decolonization for decades to come. Wheatley explores how the Central European experience opens a unique perspective on a pivotal legal fiction—the supposed juridical immortality of states.
A sweeping work of intellectual history, The Life and Death of States offers a penetrating and original analysis of the relationship between sovereignty and time, illustrating how the many deaths and precarious lives of the region’s states expose the tension between the law’s need for continuity and history’s volatility.
The interplay between international humanitarian law (IHL) and international human rights law (IHRL) continues to hold the attention of experts and decision-makers. The instability of existing law and practice relating to co-application, underlies efforts to move beyond the lex specialis/lex generalis framework – either by returning to the pre-co-application status quo or by developing new hybrid norms that draw on contents found in both IHL and IHRL. Both of these moves are complicated, however, by the growing relevance of an additional body of international law – jus ad bellum ¬– to situations of armed conflict.
The present article tracks the main fluctuations in international law doctrine concerning the co-application of IHL and IHRL, as reflected inter alia in the caselaw of international courts and tribunals, the work of UN human rights treaties bodies and the academic literature on the topic. It shows that, contrary to accepted wisdom in the field, the lex generalis/specialis framework serves as the starting point, but certainly not the end point, of the legal analysis, and that there is growing support for the emergence of new approaches to the interplay between IHL and IHRL. These new approaches are also informed, inevitably, by new doctrinal developments relating to the interplay between IHRL and jus ad bellum.
Part 1 surveys the main normative developments leading up to the emergence of the doctrine of co-application in the 1996 International Court of Justice (ICJ) Nuclear Weapons advisory opinion. Part 2 describes the changes in the application of the lex specialis rule in the period after the advisory opinion. Part 3 discusses the move beyond the lex generalis/specialis framework represented by attempts to limit co-application and to develop new hybrid rules, and Part 4 considers the impact of the co-applicability of IHRL and jus ad bellum on lex generalis/specialis framework.
Recently, various States elaborated constitutional laws on the status and reintegration of parts of their territory under military occupation. “De-occupation” is understood as the (purported or actual) takeover of effective control over a temporarily occupied territory by the territorial State having the sovereign title over the area. After de-occupation, the classical concept of postliminium holds that it is a matter for domestic law to determine what legal status, rights, and duties shall attach to inhabitants, territory, and personal property restored to the jurisdiction of a State. As a main rule, contemporary international law still maintains this view: any measure carried out by the occupying power does not survive unless the territorial State so wishes. However, due to its expansion, international law restricts postliminium by requiring the territorial State to allow certain legal effects of the occupant’s acts and policies, and to enhance local ownership in the de-occupied territory. By analysing the international obligations and domestic law of Georgia, the Republic of Moldova, Ukraine and Azerbaijan, selected as case studies on actual or prospective de-occupation, the paper identifies certain rules of international law that require the territorial State to enact its domestic law with a view to humanize and democratize transition.
This volume deals with the right of any individual not to be subjected to torture. Although almost universally prohibited, torture still manifests itself in the conduct of several States around the world, including Member States of the Council of Europe. The European Court of Human Rights has, since its inception, entered numerous findings of torture. Mindful of the urgency of the effectiveness of the international legal prohibition of torture, this book examines and critically appraises the practice of the European Court on torture. Through the analysis of leading cases and the legal issues ensuing from them, the book explores the contribution of the European Court to the clarification of the applicable law, illustrating developments of legal significance, exploring some still contentious issues, and stressing the several achievements as well as some still questionable outcomes. The volume offers knowledge and analytical tools to students and researchers, but also to lawyers and practitioners as it collects in a single volume significant portions of jurisprudence distilled from what are often lengthy and detailed judgments, followed by a reflection on the legal issues arising in a specific case or common to a number of them.
The latest issue of the Rivista di Diritto Internazionale (Vol. 106, no. 2, 2023) is out. Contents include:
