Despite the apparent opposition between the two concepts, human rights protection and international investment law in fact share many common features, the most important being the weak or vulnerable position of both individuals and foreign investors in relation to the state, which can take decisions affecting their rights and obligations without their participation. This reality has been one of the main justifications behind the grant of rights and protection to both individuals and foreign investors.
The protection of foreign investment is a relatively old concept in international law and relations but has in the past decades evolved and developed rapidly. Globalisation of the world economy and the weakening of the barriers traditionally faced by investors in broadening their field of activity in foreign states has resulted in an expansion of foreign commercial activity in states. At the same time, states have privatised many areas of the public sector, such as such water, sewage, gas and the management of (hazardous) waste sites. This privatization has often been done by relying on foreign investors, and has thus led to the involvement of non-state entities in functions usually exercised by state organs or entities. Privatisation is of course not problematic in se, since it can improve public health and human rights generally, but it can also result in a decreased respect for human rights.
The involvement of foreign investors has only been possible by giving them far-reaching protection from unilateral interference by the host state. Such protection is often materialized through the signature of investment treaties between the host state and the home state of the investor. The protection offered to investors in investment law is done via different ‘standards’, and most often includes the direct access of individuals and corporations to international arbitration. As a result of privatization and the involvement of foreign investor in public sectors however, host states which are bound by international human rights norms, and obligations under international investment agreements can be faced with a conflict of obligations. Indeed, the investment agreements between the host state and the foreign investor can amount to violation of the obligation for the host state to protect or to ensure the protection of the human rights within its territory, especially when the privatization has resulted in the endangerment of human rights relating to health. But any action by the host state to remedy this violation might then be considered as a breach of the state’s obligation under international investment agreements and/or investment contracts.
In this chapter I will assess the rules relating to the conflict between human rights and investment obligations, and the way in which human rights considerations, raised as defences to 'justify' alleged breaches of international investment treaties could be and have been dealt with by investment tribunals. I will particularly zoom in on human rights considerations invoked by the host state and third non-disputing parties. The first section will briefly depict the specificities of international investment arbitration, in order to better grasp the reasoning of investment tribunals with respect to human rights considerations. I will next address the human rights obligations of foreign corporations and host states. This responsibility will be addressed both from the perspective of the host state and from the perspective of the corporation. I will then discuss the potential conflict between those human rights responsibilities and the responsibility of states with reference to their obligations under investment treaties, and the way in which investment tribunals have dealt with human rights considerations raised by the host state. Finally, I will discuss the role played by NGOs in bringing human rights considerations before investment dispute settlement proceedings as 'friends of the court'.
Saturday, March 9, 2013
de Brabandere: Human Rights Considerations in International Investment Arbitration
Friday, March 8, 2013
The Return of IntLawGrrls
Bellamy & Williams: Providing Peacekeepers: The Politics, Challenges, and Future of United Nations Peacekeeping Contributions
During the first decade of the twenty-first century, the rising demand for peacekeepers saw the United Nations (UN) operate at a historically unprecedented tempo, with increases in the number and size of missions as well as in the scope and complexity of their mandates. The need to deploy over 120,000 UN peacekeepers and the demands placed upon them in the field have threatened to outstrip the willingness and to some extent capacity of the UN's Member States. This situation raised the questions of why states contribute forces to UN missions and, conversely, what factors inhibit them from doing more? Providing Peacekeepers answers these questions. After summarizing the challenges confronting the UN in its force generation efforts, the book develops a new framework for analyzing UN peacekeeping contributions in light of the evidence presented in sixteen case study chapters which examine the experiences of the United States, the United Kingdom, France, the People's Republic of China, the Russian Federation, Bangladesh, Pakistan, India, Nigeria, Ghana, Nepal, Uruguay, Brazil, Turkey, South Africa, and Japan. The book concludes by offering recommendations for how the UN might develop new strategies for force generation so as to meet the foreseeable challenges of twenty-first century peacekeeping and improve the quantity and quality of its uniformed peacekeepers.
Guzman & Linos: Human Rights Backsliding
Human rights advocates and international lawyers view international agreements and other international norms as important tools to improve human rights around the world. This Article explains that, contrary to widely held beliefs, international human rights norms are not a one-way street. Norms capable of generating improved behavior in poorly performing states will also tend to exert a downward pull on high-performing states. This downward pull leads to what we term “human rights backsliding” — a tendency for high-performing states to weaken their domestic human rights regimes relative to prior behavior or relative to what they would otherwise have done.
The theory of backsliding is a novel one, and so we introduce it with several real-world examples. In order to make the theory, its assumptions, and its consequences as explicit as possible, we also provide a formal model of backsliding. We then explain how an understanding of human rights backsliding helps explain state behavior that is otherwise puzzling. We explore some of the implications of backsliding for the design of international agreements and we consider strategies for advocates seeking to advance the cause of human rights internationally.
Karton: The Culture of International Arbitration and the Evolution of Contract Law
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues.
Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitrations unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators.
Thursday, March 7, 2013
New Volume: African Yearbook on International Humanitarian Law
- Brian Sang, Clearing some of the Fog of War over Combatting Terrorists on the Frontiers of International Law : Targeted Killing and International Humanitarian Law
- John-Marc Iyi, Somali Piracy, UNSC Resolutions 1816-1851 : Dilemma of State Failure and the Burden of Legitimacy
- Muhammed Tawfiq Ladan, Legal and Policy Imperatives for the Prevention, Protection, Assistance and Durable Solutrion to the Plight of Internally Displaced Persons (IDPs) in Nigeria
- Kesolofetse Lefenya, The Convention on Cluster Munitions (2008) : Implications for International Humanitarian Law (IHL) in Africa
- Garth Abraham, Universal Jurisdiction and the African Union (AU) : ". . . the Wrong Side of History"?
- Elizabeth Macharia-Mokobi, Towards Complementarity in Botswana
- Dan Kuwali, "Humanitarian Rights" : Enforcement of International Humanitarian Law by the African Court of Human Rights
- Abubakar Matazu, The Domestic Implementation of International Humanitarian Law (IHL) in Nigeria : Issues and Challenges
Steil: The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the Making of a New World Order
When turmoil strikes world monetary and financial markets, leaders invariably call for 'a new Bretton Woods' to prevent catastrophic economic disorder and defuse political conflict. The name of the remote New Hampshire town where representatives of forty-four nations gathered in July 1944, in the midst of the century's second great war, has become shorthand for enlightened globalization. The actual story surrounding the historic Bretton Woods accords, however, is full of startling drama, intrigue, and rivalry, which are vividly brought to life in Benn Steil's epic account.
Upending the conventional wisdom that Bretton Woods was the product of an amiable Anglo-American collaboration, Steil shows that it was in reality part of a much more ambitious geopolitical agenda hatched within President Franklin D. Roosevelt's Treasury and aimed at eliminating Britain as an economic and political rival. At the heart of the drama were the antipodal characters of John Maynard Keynes, the renowned and revolutionary British economist, and Harry Dexter White, the dogged, self-made American technocrat. Bringing to bear new and striking archival evidence, Steil offers the most compelling portrait yet of the complex and controversial figure of White--the architect of the dollar's privileged place in the Bretton Woods monetary system, who also, very privately, admired Soviet economic planning and engaged in clandestine communications with Soviet intelligence officials and agents over many years.
New Issue: Journal of World Trade
- Marie Isabelle Pellan & Marn-Heong Wong, Trade Facilitation in ASEAN and ASEAN+1 FTAs: An Analysis of Provisions and Progress
- Juscelino F. Colares, Paths to Carbon Stabilization: How Foreign Carbon-Restricting Reforms Will Affect US Industry, Climate Policy and the Prospects of a Binding Emission Reduction Treaty
- Maria Garcia, Resources and Trade: Linking the Pacific through Bilateral Free Trade Agreements (FTA)
- Claudio Dordi & Antonella Forganni, The Comitology Reform in the EU: Potential Effects on Trade Defence Instruments
- Rostam J. Neuwirth, The Future of the ‘Culture and Trade Debate’: A Legal Outlook
- Jaemin Lee, Complementing Each Other or Stoking Further Complexity?
- Gary N. Horlick, A Personal History of the WTO Subsidies Agreement
Call for Applications: The Hague Academy's External Programme "Stability and Change in the Law of the Sea"
At the end of the 1960s, the Academy established the "external program", which is normally held each year, in turn in Africa, Asia, and Latin America, upon the invitation of host governments or international organizations. It enjoys great popularity in the countries visited by the Academy. The program is a means not only of developing knowledge of topics of international law relevant for the region, but also, by the way in which it is organized, of promoting mutual familiarity among students from countries in the region. The teaching methods are interactive, and are aimed at fostering dialogue and discussion that also take place in informal settings, during meals, encounters, visits and lectures. Several hundred lecturers and more than 1500 participants from Africa, Asia and Latin America have attended external sessions. The External Program is designed for around 20 participants from the countries in the region (who are resident in their own country), whose traveling expenses are usually financed by the Academy and whose accommodation is financed by the government of the host State or organization. In addition, a number of participants come from the host State itself.
Call for Applications: Venice Academy of Human Rights
New Issue: Archiv des Völkerrechts
- Sigrid Boysen, Grundfragen des transnationalen Klimaschutzrechts
- Sebastian Oberthür & René Lefeber, Das System der Erfüllungskontrolle des Kyoto-Protokolls: Eine Bestandsaufnahme nach sechs Jahren Praxis
- Moritz von Unger, Rechtsform und Prozess: Klimaverträge nach Kyoto
- Moritz Hartmann, Transnationales Klimaschutzrecht nach Rio+20
- Beitrage und Berichte
- The Rio+20 Conference and International Law: towards a multi-layered multilateralism?
Wednesday, March 6, 2013
New Issue: Journal of Conflict Resolution
- Martin Gassebner, Michael J. Lamla, & James Raymond Vreeland, Extreme Bounds of Democracy
- Michael Albertus & Oliver Kaplan, Land Reform as a Counterinsurgency Policy: Evidence from Colombia
- Tamir Sheafer & Shaul Shenhav, Political Culture Congruence and Political Stability: Revisiting the Congruence Hypothesis with Prospect Theory
- Douglas M. Gibler & Steven V. Miller, Quick Victories?: Territory, Democracies, and Their Disputes
- Peter Liberman, Retributive Support for International Punishment and Torture
- Eline Van der Heijden and Erling Moxnes Leading by Example to Protect the Environment: Do the Costs of Leading Matter?
- David Hugh-Jones & Ro’i Zultan, Reputation and Cooperation in Defense
New Issue: International Community Law Review
- Special Issue: International Environmental Law and Governance
- Michael Bowman, Beyond the “Keystone” CoPs: The Ecology of Institutional Governance in Conservation Treaty Regimes
- Edward J. Goodwin, Delegate Preparation and Participation in Conferences of the Parties to Environmental Treaties
- Peter G.G. Davies, Non-Compliance – a Pivotal or Secondary Function of CoP Governance?
- Feja Lesniewska, UNFCCC REDD+ COP Decisions: The Cumulative Effect on Forest Related Law Processes
- Philippe Cullet, Governing the Environment without CoPs – The Case of Water
New Issue: Revue de Droit International et de Droit Comparé
- C. Acocella, Droit punitif et valeur de la certitude. Le cas de la clémence dans le cadre du droit de la concurrence
- A. de Raulin, Les relations droit-mémoire en droit international et interne : les évolutions récentes
Sellars: 'Crimes against Peace' and International Law
In 1946, the judges at the International Military Tribunal at Nuremberg declared 'crimes against peace' – the planning, initiation or waging of aggressive wars – to be 'the supreme international crime'. At the time, the prosecuting powers heralded the charge as being a legal milestone, but it later proved to be an anomaly arising from the unique circumstances of the post-war period. This study traces the idea of criminalising aggression, from its origins after the First World War, through its high-water mark at the post-war tribunals at Nuremberg and Tokyo, to its abandonment during the Cold War. Today, a similar charge – the 'crime of aggression' – is being mooted at the International Criminal Court, so the ideas and debates that shaped the original charge of 'crimes against peace' assume new significance and offer valuable insights to lawyers, policy-makers and scholars engaged in international law and international relations.
Tuesday, March 5, 2013
New Issue: Michigan Journal of International Law
- George K. Foster, Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium Between Economic Development and Indigenous Rights
- Barbara Miltner, Revisiting Extraterritoriality After Al-Skeini: The ECHR and Its Lessons
- Ziv Bohrer, Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology
New Issue: ASIL Reports on International Organizations
Workshop: Is There Anything Special About International Human Rights Law?
The requirement for a proper understanding of the idea of human rights has become a live one for academic and policy-orientated debate in moral and political theory and political thought. The most prominent of the debates in the United Kingdom relates to the judgment of the European Court of Human Rights on the right of prisoners to vote. The results of the multidisciplinary enquiry will be of interest to those in the academy and in relation to domestic policy-debates as the UK public is increasingly sceptical about the function of a supranational Court in resolving questions of political controversy. The focus of the debate is on the way in which we interpret human rights treaties. There is general agreement that human rights treaties should be interpreted primarily in line with the 'object and purpose' of the instrument: the protection of human rights. But this circular argument is unhelpful in the absence of conception of 'human rights'. The international law concept of 'human rights' must necessarily be informed (it might be argued) by the idea of 'human rights' in moral and political theory and political thought with which it shares a family resemblance. The multi-disciplinary discussions in the workshop will focus on the following questions in ethical, philosophical and political thought, and their implications for understanding the idea of 'international human rights law': What is the moral basis of 'human rights'? What is the function and the distinctive claims of 'human rights' in world society? What are the sources of 'human rights'? How, and in what ways, should international 'human rights' limit the possibilities of political self-determination in democratic States?
New Issue: Cambridge Journal of International and Comparative Law
- Conference Issue: Agents of Change: The Individual as a Participant in the Legal Process
- Keynote Address
- Elihu Lauterpacht, Introductory Remarks
- Antônio Augusto Cançado Trindade, The Historical Recovery of the Human Person as Subject of the Law of Nations
- Conference Papers
- Kate Parlett, The Individual and Structural Change in the International Legal System
- Douglas Guilfoyle, Somali Pirates as Agents of Change in International Law–making and Organisation
- Cindy Daase, The Law of the Peacemaker: The Role of Mediators in Peace Negotiations and Lawmaking
- Michael Peil, Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice
- Mohamad Ghazi Janaby & Khaled Ramadan Bashir, The Right of Individuals to Take Judicial Action Against International Persons: The Case of NATO's Intervention in Libya
- Gleider I. Hernández, Impartiality and Bias at the International Court of Justice
- Lucas Bastin, The Amicus Curiae in Investor-State Arbitration
- James Fowkes, Civil Procedure in Public Interest Litigation: Tradition, Collaboration and the Managerial Judge
- Adeeba Aziz Khan, NGOs, the Judiciary and Rights in Bangladesh: Just Another Face of Partisan Politics?
- Aoife O’Donoghue, Agents of Change: Academics and the Spirit of Debate at International Conferences
- Bart L. Smit Duijzentkunst, From Access to Justice—Book Review of Judge Cançado Trindade's The Access of Individuals to International Justice, Oxford University Press 2011
Tzanakopoulos: The Countermeasure of Disobedience: Implementing the Responsibility of International Organisations
This short study in memory of Sir Ian Brownlie QC discusses the countermeasure of disobedience as a means of implementation of the responsibility of international organisations. Focusing on Security Council sanctions under Chapter VII of the Charter, it argues that actions of the Security Council may be illegal and thus engage the responsibility of the UN. It then argues that disobedience of such sanctions on the part of States may qualify as a countermeasure against the Organisation. This legal characterisation of disobedience has significant advantages over the 'invalidity theory' in that it subjects decentralised reaction to a specific legal framework.
Monday, March 4, 2013
New Issue: Journal of Conflict Resolution
- Special Issue: Entrepreneurship and Conflict
- Tilman Brück, Wim Naudé, & Philip Verwimp, Business under Fire: Entrepreneurship and Violent Conflict in Developing Countries
- Sameeksha Desai, Zoltan J. Acs, & Utz Weitzel, A Model of Destructive Entrepreneurship: Insight for Conflict and Postconflict Recovery
- M. Sanders & U. Weitzel, Misallocation of Entrepreneurial Talent in Postconflict Environments
- Paul Collier & Marguerite Duponchel, The Economic Legacy of Civil War: Firm-level Evidence from Sierra Leone
- Adriana Camacho & Catherine Rodriguez, Firm Exit and Armed Conflict in Colombia
- Carlos Bozzoli, Tilman Brück, & Nina Wald, Self-employment and Conflict in Colombia
- Prakarsh Singh, Impact of Terrorism on Investment Decisions of Farmers: Evidence from the Punjab Insurgency
Lupu: International Judicial Legitimacy: Lessons from National Courts
How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy can be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences.
Talmon: Recognition of Opposition Groups as the Legitimate Representative of a People
During the civil wars in Libya and Syria, the rebel opposition groups were recognized as ‘the (sole) legitimate representative of the people' of these States. This paper, using the situation in Syria as a case study, examines what it means to recognize an opposition group as ‘the legitimate representative of a people’, while the State’s government is still in place. It is shown that with regard to recognition statements wording is all important and that the Syrian Opposition Council has been recognized in at least six different capacities of varying legal significance. The paper sets out the difference between the ‘legal’ and the ‘political’ act of recognition and finds that recognition as ‘the legitimate representative of a people’ is a political act. Although four normative criteria for the status of ‘legitimate representative of a people’ can be identified what is lacking are clear standards for their application. The paper outlines the consequences of political recognition and examines its legality in terms of international law and its suitability as a political tool.
Criddle: Humanitarian Financial Intervention
Over the past several decades, states have used international asset freezes with increasing frequency as a mechanism for promoting human rights abroad. Yet the international law governing this mechanism, which I refer to as ‘humanitarian financial intervention,’ remains fragmented. This article offers the first systematic legal analysis of humanitarian financial intervention. It identifies six humanitarian purposes that states may pursue through asset freezes: preserving foreign assets from misappropriation, incapacitating foreign states or foreign nationals, coercing foreign states or foreign nationals to forsake abusive practices, compensating victims, ameliorating humanitarian crises through humanitarian aid or post-conflict reconstruction, and punishing human rights violators. Whether intervening states may pursue these objectives in any given context depends upon the interplay between several international legal regimes, including international investment law, collective-security agreements such as the UN Charter, the customary law of countermeasures, the law of armed conflict, and customary law governing the enforcement of judicial decisions. By disentangling the various international legal regimes that govern humanitarian financial intervention, this article furnishes a preliminary road map for evaluating the legality of past, present, and future financial interventions — including asset freezes directed against the Qaddafi regime during the 2011 Libyan Revolution.
Sunday, March 3, 2013
New Volume: New Zealand Yearbook of International Law
- C. Brighton, Speculation and Significance: Japan’s Scientific Whaling Before the International Court of Justice
- Lewis Mills, Bereft of Life? The Charter Prohibition on the Use of Force, Non-state Actors and the Place of the International Court of Justice
- Patrick C.R. Terry, The War in Afghanistan – Was the Use of Force Legal and/or Wise?
- Kate Neilson, Ending Impunity: Bringing Superiors of Private Military and Security Company Personnel to Justice
- Andreas Schloenhardt & Ellen Bevan, To Ratify or Not to Ratify? Exploring the Barriers to Wider Ratification of the Trafficking in Persons Protocol
- Commentaries and Notes
- Alex Conte, Reflections and Challenges: Entering into the Second Cycle of the Universal Periodic Review Mechanism/li>
- Elana Geddis, “Moving Forward – But Where is it Heading?” A Comment on Developments in the UN Sixth Committee’s Discussions on Universal Jurisdiction