Why do states enter into treaties? In literature on the investment regime, the dominant answer is that investment treaties provide credible commitments to foreign investors. This narrative provides valuable insights but cannot account for the historical origins of the treaties, where drafters explicitly decided to exclude ‘strong’ dispute settlement provisions. Unlike modern- day investment treaties, the early investment treaty regime did not allow investors to file claims against host states through investor-state dispute settlement (ISDS). Using historical evidence from three major capital exporting states – the United States, the United Kingdom, and Germany – the article shows that this was a conscious design choice. Rather than providing formal dispute settlement, sanctions and penalties to make credible commitments, Western states intended investment treaties to serve as salient focal points for the informal resolution of investment disputes. The substantive obligations were expected to fulfil their coordinating role without the shadow of judicialized dispute settlement. The argument is not just of historical interest but has broader implications for literature on international economic law dominated by the credible commitment narrative, as well as the current political backlash against ISDS.
Saturday, September 21, 2019
This article explores the potential contribution of international human rights law – specifically, the oft-neglected ‘right to science’ – to the interpretation, operation, and progressive development of international environmental law. Science and its applications play a critical role in environmental protection. At the same time, society faces persistent controversies at this interface. Environmental regimes may lack sufficient norms and tools for regulating upstream science and innovation processes, because they tend to focus narrowly on physical harms to environment, and may not address the wider ethical, legal, and social, and political concerns. The human right to science, which is codified in various international and regional human rights instruments, may serve to augment international environmental law, and contribute to more effective, equitable, and democratically legitimate, and accountable processes and outcomes in relation to the application science and technology in environmental regimes. The article begins by outlining the scope and contents of, as well as limitations on, the right to science, focusing on Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its overlaps norms of international environmental law. It then analyses of the ways in which the right to science may influence the development of international environmental law by elucidating mechanisms for the integration of a human rights perspective in science and technology, and by outlining its potential substantive contributions to the development of international environmental law.
Friday, September 20, 2019
The tenth anniversary of the Lehman Brothers insolvency, which entailed the global economic crisis, calls for a critical reexamination of the relationship between law and finance (economics). Should law be treated as an instrument of economic growth—in accordance with economic theory? Or is it the economy that should be harnessed for the society within its socio-normative framework? Accordingly, what is the normative social expectation in regards of (economic) freedom and (economic) security? Not surprisingly such dilemmas, a characteristic feature of the post-modernity, resulted in the legitimacy crisis of international monetary and financial law, which in turn brought the Rule of Law (RoL) to the forefront of the current debate on the reform of international economic law. Although RoL may provide much needed assistance in our pursuit of a more sustainable growth and equitable society, it can only do so, if we learn from past mistakes. Hence, current policies of the IMF in respect of the RoL should be put in context of complex relationship between international economic law and international economics.
Call for Papers: Reassessing the Truth: The Role of Scientific and Technological Progress, the Business Sector, the Sustainable Economic and Community Development in the Energy Transition (Reminder)
For some time, the word 'crisis' has been dominating international political discourse. But this is nothing new. Crisis has always been part of the discipline of international law. History indeed shows that international law has developed through reacting to previous experiences of crisis, reflecting an agreement on what it takes to avoid their repetition. However, human society evolves and challenges existing rules, structures, and agreements. International law is confronted with questions as to the suitability of the existing legal framework for new stages of development.
Ulrich and Ziemele here bring together an expert group of scholars to address the question of how international law confronts crises today in terms of legal thought, rule-making, and rule-application. The editors have characterized international law and crisis discourse as one of a dialectical nature, and have grouped the articles contained in the volume under four main themes: security, immunities, sustainable development, and philosophical perspectives. Each theme pertains to an area of international law which at the present moment in time is subject to notable challenges and confrontations from developments in human society. The surprising general conclusion which emerges is that, by and large, the international legal system contains concepts, principles, rules, mechanisms and formats for addressing the various developments that may prima facie seem to challenge these very same elements of the system. Their use, however, requires informed policy decisions.
The question of what rights might be afforded to Indigenous peoples has preoccupied the municipal legal systems of settler states since the earliest colonial encounters. As a result of sustained institutional initiatives, many national legal regimes and the international legal order accept that Indigenous peoples possess an extensive array of legal rights. However, despite this development, claims advanced by Indigenous peoples relating to rights to marine spaces have been largely opposed. This book offers the first sustained study of these rights and their reception within modern legal systems. Taking a three-part approach, it looks firstly at the international aspects of Indigenous entitlements in marine spaces. It then goes on to explore specific country examples, before looking at some interdisciplinary themes of crucial importance to the question of the recognition of the rights of Indigenous peoples in marine settings. Drawing on the expertise of leading scholars, this is a rigorous and long-overdue exploration of a significant gap in the literature.
Ces dernières années ont vu un renforcement de l’interaction entre droits de l’homme et droit international économique. En témoignent la prise en compte des droits de l’homme dans les différends en matière d’investissement international ; l’intérêt que porte l’Expert indépendant pour la promotion d’un ordre international démocratique et équitable des Nations Unies à la protection des droits de l’homme dans le contentieux économique ; la sensibilisation de la société civile à la responsabilité sociétale des entreprises ; le nouveau type des traités de libre-échange qui visent un meilleur équilibre entre droits économiques et droits de l’homme. Si ces exemples illustrent un tel renforcement, cette interaction suscite également des controverses, et donne lieu à de multiples critiques visant le droit international économique, considérant qu’il ne prend pas encore suffisamment en compte les droits de l’homme. L’ouvrage examine ce constat et se penche sur les failles de l’ordre international économique ainsi que sur ses réformes. Il s’interroge sur la responsabilité des multinationales et des autres entreprises en matière de droits de l’homme ; il étudie la prise en compte des droits de l’homme dans les chaînes globales de valeur, mais aussi dans les conditionnalités du FMI ; il examine la présence des droits de l’homme dans l’arbitrage de l’investissement, et propose des solutions pour une coexistence future plus harmonieuse entre les deux domaines.
Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments & legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing claims trading seek to disguise themselves as addressing other legal issues, leading to a haphazard series of doctrines that tends to obscure the trade. The heightened visibility of all forms of external funding for claims against sovereigns has created challenges for courts and tribunals and for claimants who seek to recover on their investments. This Article analyzes the law of the international claims trade and asks what that law ought to look like in light of the theories and purposes of the international investment legal regime. Contrary to the popular view, it makes the case for secondary market players and then analyzes what should be done about them. It assesses the doctrines advanced by arbitral tribunals and by domestic courts at various stages of international investment dispute settlement involving a traded claim against a sovereign. The Article argues that, often, courts and tribunals are getting it wrong. In doing so, they obscure critical questions about why we have investment law and to what degree claims against sovereigns ought to be marketable. Drawing lessons from domestic law, the Article articulates a positive function for the international claims trade – one that investment law ought to accommodate. Finally, it proposes a way forward for states as they develop new investment instruments.
If the term were given its literal meaning, international law would be law between 'nations'. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities.
In this monograph, Rowan Nicholson contends that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state. Subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Nicholson also argues that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; precolonial African chiefdoms; 'states-in-context', an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.
Thursday, September 19, 2019
Amoroso & Tamburrini: Filling the Empty Box: A Principled Approach to Meaningful Human Control over Weapons Systems
Wednesday, September 18, 2019
Tuesday, September 17, 2019
Is the World Trade Organization (WTO) dispute settlement system (DSS) effective? How exactly is the effectiveness of this adjudicative system to be defined and measured? Is its effectiveness all about compliance? If not, what goals, beyond compliance, is the WTO DSS expected to achieve? Has it fulfilled these objectives so far, and how can their achievement and the systems effectiveness be enhanced in the future?
Building on a theoretical model derived from the social sciences, this book lays down the analytical framework required to answer these questions, while crafting a revealing insider's account of the WTO DSS-one of the most important and debated sites of the evolving international judiciary. Drawing on interviews with WTO adjudicators, WTO Secretariat staff, ambassadors, trade delegates, and trade lawyers, the book offers an elaborate analysis of the various goals steering the DSS's work, the diverse roles it plays, the challenges it confronts, and the outcomes it produces. Through this insider look at the WTO DSS and detailed examination of landmark trade disputes, the book uncovers the oft-hidden dynamics of WTO adjudication and provides fresh perspective on the DSS's operation and the undercurrents affecting its effectiveness.
Given the pivotal role the WTO DSS has assumed in the multilateral trading regime since its inception in 1995 and the systemic pressures it has recently come to face, this book makes an important contribution towards understanding and measuring the benefits (as well as the costs) this adjudicative body generates, while providing valuable insights into current debates on its reform.
- Charlotte E. Blattner, Beyond the Goods/Resources Dichotomy: Animal Labor and Trade Law
- Daniel W. S. Challender & Douglas C. MacMillan, Investigating the Influence of Non-state Actors on Amendments to the CITES Appendices
- Tuyen Le, CITES as Global Governance: Paths to Consensus and Defining Nature Through Uncertainty
- Mark Simpson, Polar Bear Sports Hunting: Canada’s Flawed Interpretation of the International Polar Bear Agreement
- Milan Damohorský, Protection of Charismatic Megafauna in the Law of Central European Countries
Monday, September 16, 2019
- Marco Roscini, Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes
- Maria Pichou, Immunity of Heads of State and Senior State Officials from Subpoenas and Witness Summonses
- Kassahun Molla Yilma & Julian V. Roberts, Out of Africa: Exploring the Ethiopian Sentencing Guidelines
- Paul Arnell, Extradition and Mental Health in UK Law
- Special Issue: Transformative Water Relations: Indigenous Interventions in Global Political Economies
- Kate J. Neville & Glen Coulthard, Transformative Water Relations: Indigenous Interventions in Global Political Economies
- Madeline Whetung, (En)gendering Shoreline Law: Nishnaabeg Relational Politics Along the Trent Severn Waterway
- Sibyl Diver, Daniel Ahrens, Talia Arbit, & Karen Bakker, Engaging Colonial Entanglements: “Treatment as a State” Policy for Indigenous Water Co-Governance
- Andrew Curley, “Our Winters’ Rights”: Challenging Colonial Water Laws
- Emma S. Norman, Finding Common Ground: Negotiating Downstream Rights to Harvest with Upstream Responsibilities to Protect—Dairies, Berries, and Shellfish in the Salish Sea
- Caleb Behn & Karen Bakker, Rendering Technical, Rendering Sacred: The Politics of Hydroelectric Development on British Columbia’s Saaghii Naachii/Peace River
- Rachel Arsenault, Carrie Bourassa, Sibyl Diver, Deborah McGregor, & Aaron Witham, Including Indigenous Knowledge Systems in Environmental Assessments: Restructuring the Process
- The M/V “Norstar” Case (Panama v. Italy) (ITLOS), with introductory note by Richard Collins
- José Isabel Salas Galindo and Others: United States (Inter-Am. Comm'n H.R.), with introductory note by Rosa Celorio
- Relu Adrian Coman and Others v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne (C.J.E.U.), with introductory note by Alina Tryfonidou
- Asociación Profesional Élite Taxi v. Uber Systems Spain SL (C.J.E.U.), with introductory note by Ilda Durri
- General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (H.R. Comm.), with introductory note by Sarah Joseph
- General Comment No. 24 (2017) on State Obligations Under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities (CESCR), with introductory note by Tara Van Ho
Friday, September 13, 2019
- Nina Caspersen, Human rights in territorial peace agreements
- Robert Lamb, Pragmatism, practices, and human rights
- Maja Zehfuss, Military refusers and the invocation of conscience: Relational subjectivities and the legitimation of liberal war
- Henry Redwood & Alister Wedderburn, A cat-and-Maus game: the politics of truth and reconciliation in post-conflict comics
- Scott Hamilton, I am uncertain, but We are not: a new subjectivity of the Anthropocene
- Lisa Maria Dellmuth, Jan Aart Scholte, & Jonas Tallberg, Institutional sources of legitimacy for international organisations: Beyond procedure versus performance
- Jack Corbett, Yi-chong Xu, & Patrick Weller, Norm entrepreneurship and diffusion ‘from below’ in international organisations: How the competent performance of vulnerability generates benefits for small states
- Thomas Müller, The variety of institutionalised inequalities: Stratificatory interlinkages in interwar international society
- Alexander Cooley, Daniel Nexon, & Steven Ward, Revising order or challenging the balance of military power? An alternative typology of revisionist and status-quo states