Investment tribunals have fleshed out the requirements of the defence of necessity in Article 25 of the Articles on State Responsibility. This article considers the impact of necessity in international investment law and in general international law. The decided cases of the early 21st century have revealed three difficulties in Article 25 and in the defence of necessity. First, rather than assessing necessity from the vantage point of the State invoking necessity, they assess it ex post with hindsight bias. Second, the standard of proof required to demonstrate the existence of a grave and imminent peril is infeasible for many situations of risk and uncertainty. Third, the ‘only way’ criterion is not only unduly strict and virtually impossible to prove, but is wholly unrealistic for macro-level crises, such as pandemics or financial crises. To account for these difficulties, tribunals should avoid hindsight bias, especially with respect to ‘grave and imminent peril’ and the ‘only way’ criterion. The defence of necessity is a blunt instrument and has not afforded States a significant ‘safety valve’. As a result, States have begun to reconsider the substantive standards in investment treaties and to include internal exceptions in their investment treaties.
Saturday, June 5, 2021
The image of international legal decision-makers emerging from socio-cognitive studies is significantly different from the prevalent view among diverse actors operating in this field. The socio-cognitive perspective of international law underlines that sensory objects are not 'objectives' or self-evident, and that their internalization in legal decision-makers' minds always involves intermediating mental processes (such as perception, categorization, and interpretation). Limited cognitive resources available to such decision-makers (including military commanders, national decision-makers, and international adjudicators) often lead them to utilize heuristic shortcuts (though occasionally involving some well-known biases). These cognitive processes and heuristics are frequently influenced by socio-cultural patterns (such as norms of attention, stereotypes, or languages) prevailing in the decision-makers' social groups, and often below their conscious level. The increasing awareness to the constraining influence of default socio-cognitive systems on individuals tends to diminish the significance of human agency in real life social situations. On the theoretical level, the latter tendency in socio-cognitive literature supports a shift towards the structural pole of the agency–structure continuum. The formation, interpretation, and implementation of international law interact with diverse socio-cognitive processes. Equipped with insights drawn from socio-cognitive and sociological theoretical literatures, the last section of this chapter focuses on international criminal law, emphasizing its intensified multi-cognitive character and the significant effects of socio-mental patterns on defendants and additional actors (such as adjudicators and prosecutorial staff). This discussion suggests that where it is credibly proven that the particular crime directly involves a distinctive socio-cognitive pattern predominant in the defendant's community, it is desirable that the tribunal considers the defendant's socio-cognitive background as a mitigating or aggravating factor at the sentencing stage.
- Chie Kojima, Modern Slavery and the Law of the Sea: Proposal for a Functional Approach
- Anastasia Telesetsky, Keeping UNCLOS Relevant: Revising UNCLOS to Address 21st Century Fishing, Labor Practices, Pollution, and Climate Change
- Helmut Tuerk, Some Developments and Issues after the Adoption of UNCLOS
- Dustin Kuan-Hsiung Wang, Fill the Gap between Law and Governance: An Observation on SDG 14
- Chris Whomersley, How to Amend UNCLOS and Why It Has Never Been Done
- Karen N. Scott, MPAs in the Southern Ocean under CCAMLR: Implementing SDG 14.5
- Vasco Becker-Weinberg, The Interpretation and Application of the Freedom of Navigation and Flag State Jurisdiction in the M/V “Norstar” and the M/T “San Padre Pio” Cases
- Anthony Carty, What Use Is Customary International Law?
- Hua Zhang, The Development of International Law of the Sea by International Courts and Tribunals: A Case Study of Due Diligence Obligation
Workshop: The Influence, Legacy and Future of the European Court of Human Rights in the International Legal Order
Conference: Whither Eastern Asian Liberals? The Aspirations and Anxieties of International Law in Taiwan, Korea, and Japan
Friday, June 4, 2021
Call for Submissions: Special Issue on "Water Law as Environmental Law" (Chinese Journal of Environmental Law)
Thursday, June 3, 2021
- 50 Years Vienna Convention on the Law of Treaties
- Christina Binder & August Reinisch, 50 Years Vienna Convention on the Law of Treaties’
- Helmut Tichy, Introductory Remarks
- Axel Marschik, The Vienna Convention of the Law of Treaties and Karl Zemanek – A Preamble of Sorts
- Hanspeter Neuhold, The Vienna Convention of the Law of Treaties at 50: Issues at the Vienna Codification Conference
- Veronika Bílková, Worlds Apart? Interpretation of International Criminal Law and International Human Rights Law Treaties and the VCLT
- Georg Nolte, Still Setting the Frame: The Vienna Convention’s Rules on Treaty Interpretation in the Light of the ILC Conclusions on Subsequent Agreements and Subsequent Practice
- Gerhard Hafner, Provisional Application of Treaties
- Christina Binder, The VCLT over the Last 50 Years: Developments in the Law of Treaties with a Special Focus on the VCLT’s Rules on Treaty Termination
- Dire Tladi, The ILC’s Draft Conclusions on Peremptory Norms of General International Law: Personal Reflections of the Special Rapporteur
- Hélène Ruiz Fabri, The Eternal Question of Ius Cogens Running Into Procedural Hurdles
Wednesday, June 2, 2021
This chapter presents a succinct overview of the main contributions of the International Court of Justice (ICJ) to the use of force. It centrally addresses the opinions on the Court on a number of key issues, such as the prohibition to use force and its potential exceptions, most notably the law on individual and collective self-defence. It further presents some descriptive statistics about how the Court has decided cases in this area, it seeks to identify the main conceptualizations, inconsistencies, disagreements, and limitations of the Court’s opinions, as well as their evolution. It ultimately argues that although the initial influence of the Court was substantial, it has faded significantly over the years as a result of what seems a conscious, even strategic decision of its judges.
Graf: The Humanity of Universal Crime: Inclusion, Inequality, and Intervention in International Political Thought
The international crime of "crimes against humanity" has become integral to contemporary political and legal discourse. However, the conceptual core of the term--an act against all of mankind--has a longer and deeper history in international political thought. In an original excavation of this history, The Humanity of Universal Crime examines theoretical mobilizations of the idea of universal crime in colonial and post-colonial contexts. Sinja Graf demonstrates the overlooked centrality of humanity and criminality to political liberalism's historical engagement with world politics, thereby breaking with the exhaustively studied status of individual rights in liberal thought. Graf argues that invocations of universal crime project humanity as a normatively integrated, yet minimally inclusive and hierarchically structured subject. Such visions of humanity have in turn underwritten justifications of foreign rule and outsider intervention based on claims to an injury universally suffered by all mankind.
Foregrounding the "political productivity" of universal crime, the book traces the intellectual history of the rise, fall, and reappearance of notions of universal crime in political theory over time. It looks particularly at the way European theorists have deployed the concept in assessing the legitimacy of colonial rule and foreign intervention in non-European societies. The book argues that an "inclusionary Eurocentrism" subtends the authorizing and coercive dimensions of universal crime. Unlike much-studied "exclusionary Eurocentrist" thinking, "inclusionary Eurocentrist" arguments have historically extended an unequal, repressive "recognition via liability" to non-European peoples. Overall the book offers a novel view of how claims to act in the name of humanity are deeply steeped in practices that reproduce structures of inequality at a global level, particularly across political empires.
New Issue: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre
- Gunnar Carroll, Clearing the smoke: evaluating the United States policy toward white phosphorus munitions in urban contexts
- Gary Pattison, Soldier self-defence: the theoretical and legal bases for command-imposed restrictions
- Ezéchiel Amani Cirimwami & Pacifique Muhindo Magadju, Prosecuting rape as war crime in the Democratic Republic of the Congo: lessons and challenges learned from military tribunals
- Vanessa Sant’Anna Bonifacio Tavares, The Comprehensive Nuclear Test-Ban Treaty, a legal anomaly?
- Triantafyllos Kouloufakos, The prohibition of the threat or use of force in cyberspace: novel legal frontier or adaptation of old frameworks?
- Giacomo Biggio, International humanitarian law and the protection of the civilian population in cyberspace: towards a human dignity-oriented interpretation of the notion of cyber attack under Article 49 of Additional Protocol I
Tuesday, June 1, 2021
- Special Issue: Military Assistance on Request (Part 3)
- Christian Henderson, Introduction
- Luca Ferro, The doctrine of ‘negative equality’ and the silent majority of states
- Christian Henderson, A countering of the asymmetrical interpretation of the doctrine of counter-intervention
- Michael J. Strauss, Foreign bases in host states as a form of invited military assistance: legal implications
- Michael Byers, Still agreeing to disagree: international security and constructive ambiguity
- Rebecca Barber, A survey of the General Assembly's competence in matters of international peace and security: in law and practice
Monday, May 31, 2021
Madsen: 'Unity in Diversity' Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences
The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system and striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset if all judgments of the period, the article provides a structural analyses of developments in references to margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.
Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. Only a few articles consider international criminal law dissents, and these praise them for enhancing the legitimacy of the international criminal tribunals. This article, the first in a series, launches a comprehensive empirical treatment of international criminal law separate opinions. The foundation of this project is my careful review of every separate opinion in every Trial Chamber and Appeals Chamber judgment at the four, core international criminal tribunals. My fine-grained assessment of these nearly 300 separate opinions provides a solid basis for my normative conclusions, conclusions that call into question the claims of non-empirical legal scholarship on separate opinions. As the first component of a larger project, this article makes two substantial contributions: First, it lays the foundation for the remainder of the project by providing core information and statistics about international criminal law’s separate opinions. Second, the article inaugurates the project’s normative analyses by empirically assessing one of the most common claims made by proponents of separate opinions: that they help to develop the law. This article employs a variety of empirical methods to evaluate that claim, including citation counts and a painstaking content analysis of the separate opinions, among others. Each of these analyses suggests that international criminal law’s separate opinions, though numerous and voluminous, have not been an influential force in developing international criminal law.
Linderfalk & Gill-Pedro: Revisiting Proportionality in International and European Law: Interests and Interest-Holders
This book casts new light on the application of the principle of proportionality in international law. Proportionality is claimed to play a central role in governing the exercise of public power in international law and has been presented as the ‘ultimate rule of law’. It has also been the subject of fierce criticism: it is argued that it leads to unreflexive and arbitrary application of the law and deprives rights of their role as a ’firewall’ protecting individuals. But the debate on proportionality has tended to focus on the question of ‘how’ proportionality should be carried out. Much less attention has been devoted to the question of ‘who’. This edited volume bring together scholars from a wide range of areas of international law to consider that question: whose interests are at stake when courts and other legal authorities apply the principle of proportionality? In so doing, this volume casts new light on the role which proportionality can play in international law, in shaping and modulating the power relations between the different entities governed by it.
- Searching for an identity: Sovereign Wealth Funds between their private and public nature in international and domestic litigation
- Introduced by Attila Tanzi and Gian Maria Farnelli
- Bianca Nalbandian, State capitalists as claimants in international Investor-State arbitration
- Cameron Miles, State debts and State-owned corporations: Trans-Atlantic perspectives
- Marco Argentini, The new Patrimonio Rilancio and the Italian approach to Sovereign Wealth Funds
- Ludovica Chiussi Curzi, Sovereign Wealth Funds as Responsible Investors? A Critical Appraisal
Sunday, May 30, 2021
This insightful book offers an in-depth examination of whether, and if so how and to what degree, contemporary international law can and should conform to and develop the rule of law principle. Motivated by the neglect of conceptual and normative theorizing of the international rule of law within contemporary international legal scholarship, Denise Wohlwend analyses the moral and legal principle of the rule of law in the international legal order. The book draws on the tradition of analytical jurisprudence to explore the possibility and desirability of the international rule of law. Encompassing both international and domestic legal orders, the book advocates for a shift in the way the international rule of law is theorized, endorsing an approach that understands it as beneficial to individuals and as closely related to the domestic rule of law.
The last couple of years have witnessed an unprecedented battle within Europe between values and pragmatism, and between states' interests and individuals' rights. This book examines humanitarian considerations and immigration control from two perspectives; one broader and more philosophical, the other more practical. The impetus to show compassion for certain categories of persons with vulnerabilities can depend on religious, philosophical and political thought. Manifestation of this compassion can vary from the notion of a charitable act to aid 'the wretched' in their home country, to humanitarian assistance for the 'distant needy' in foreign lands and, finally, to immigration policies deciding who to admit or expel from the country. The domestic practice of humanitarian protection has increasingly drawn in transnational law through the expansion of the EU acquis on asylum, and the interpretation of the European Court of Human Rights.
This thought-provoking book examines the rise of animal welfare as a serious policy concern in the international trade law regime. The central focus is an in-depth study of the background and legal analysis of the landmark EC – Seal Products case, which confirmed the importance of animal welfare in WTO law. The book explores how the WTO handled the relationship between trade disciplines and animal welfare, including the particularly challenging questions around Indigenous seal hunting rights. It offers a detailed account of animal welfare and animal conservation commitments in new trade agreements, as well as mechanisms for enforcement, cooperation, and citizen participation.
- Felix Rösch, Affect, practice, and change: Dancing world politics at the Congress of Vienna
- Linus Hagström, Disciplinary power: Text and body in the Swedish NATO debate
- Briony Jones, The performance and persistence of transitional justice and its ways of knowing atrocity
- Kazushige Kobayashi, Is normative power cosmopolitan? Rethinking European unity, norm diffusion, and international political theory
- Michal Parizek & Matthew D Stephen, The long march through the institutions: Emerging powers and the staffing of international organizations
- Laust Schouenborg & Simon F Taeuber, A quantitative approach to studying hierarchies of primary institutions in international society: The case of United Nations General Assembly disarmament resolutions, 1989–1998
- Teresa Cheng, The Search for Order within Chaos in the Evolution of ISDS
- Case Comments
- Debadatta Bose, David R Aven v Costa Rica: The Confluence of Corporations, Public International Law and International Investment Law
- Eric De Brabandere, Mathias Kruck and others v Spain
- Barton Legum & Marie-Hélène Ludwig, B-Mex, LLC and others v United Mexican States: A Defect in the Notice of Intent is not a Bar to Jurisdiction under NAFTA
- Chiann Bao, RSM v Saint Lucia: With Prejudice—The Unlikely Death Knell
- Gracious Avayiwoe, The Republic of Ghana and Bilateral Investment Treaties: A Burgeoning Expert?
- Loris Marotti, The Proliferation of Joint Interpretation Clauses in New International Investment Agreements: A Mixed Blessing?
- Barnali Choudhury, Investor Obligations for Human Rights
- Farouk El-Hosseny & Patrick Devine, Contributory Fault under International Law: A Gateway for Human Rights in ISDS?
- Orhan Bayrak, Economic Crises and the Fundamental Change of Circumstances in Investment Arbitration
- David Khachvani, Non-Compensable Regulation versus Regulatory Expropriation: Are Climate Change Regulations Compensable?
- Case Comments
- Guled Yusuf & Godwin Tan, United Utilities (Tallinn) BV v Estonia: ICSID Arbitration after Achmea: the Beginning of the End or the End of the Beginning?
- Mélida Hodgson & Edelí Rivera, UP and CD Holding Internationale v Hungary: Achmea is Not the End of Intra-EU ICSID Arbitration
- Ian A Laird & Rina M Gashaw, Besserglik v Mozambique: A Lesson in Returning to the Basics
- Chester Brown, Mark McNeill, & Jeremy K Sharpe, First Impressions of a Virtual Hearing at ICSID
- Chen Yu, Amicus Curiae Participation in ISDS: A Caution Against Political Intervention in Treaty Interpretation
- Yilin Wang, The Fight between Interpretation and Modification: A Critique of Sanum v Laos
- Zareen Qayyum, The Enforceability of Proposed Reforms to Investor–State Dispute Settlement
- Crina Baltag, The Role of Amici Curiae in Light of Recent Developments in Investment Treaty Arbitration: Legitimizing the System?
- George A Bermann, Understanding ICSID Article 54
- Lauren Mandell, The Trump Administration’s Impact on US Investment Policy
- Chester Brown & Patrick Still, The Status of the Testimony of the Non-Appearing Witness in International Arbitration
- Sophie Harman, Threat not solution: gender, global health security and COVID-19
- Stefanie Kam & Michael Clarke, Securitization, surveillance and ‘de-extremization’ in Xinjiang
- David M McCourt, Framing China's rise in the United States, Australia and the United Kingdom
- Saskia Postema & Jan Melissen, UN celebrity diplomacy in China: activism, symbolism and national ambition online
- Thom Dixon, The grey zone of cyber-biological security
- Jeppe T Jacobsen, Cyber offense in NATO: challenges and opportunities
- Jenny Lorentzen, Women as ‘new security actors’ in preventing and countering violent extremism in Mali
- Caitlin Hamilton, Rhaíssa Pagot, & Laura J Shepherd, BRICS countries and the construction of conflict in the Women, Peace and Security Open Debates
- Raffaella A Del Sarto, Sectarian securitization in the Middle East and the case of Israel
- Hassan Ahmadian & Payam Mohseni, From detente to containment: the emergence of Iran's new Saudi strategy
- Frank O'Donnell & Mihaela Papa, India's multi-alignment management and the Russia–India–China (RIC) triangle
- Monika Sus, Supranational entrepreneurs: the High Representative and the EU global strategy
- Elsa Hedling, Transforming practices of diplomacy: the European External Action Service and digital disinformation
- Jan Aart Scholte, Soetkin Verhaegen, & Jonas Tallberg, Elite attitudes and the future of global governance
- Aaron McKeil, On the concept of international disorder
- Takeshi Nakano, War and strange non-death of neoliberalism: The military foundations of modern economic ideologies
- Andreas Raspotnik & Andreas Østhagen, How much is the fish? When foreign policy meets fishing interests in the EU’s Arctic endeavour
- Carlos R. S. Milani & Magno Klein, South-South cooperation and foreign policy: Challenges and dilemmas in the perception of Brazilian diplomats
- Bernardo Teles Fazendeiro, Keeping a Promise: Roles, Audiences and Credibility in International Relations
- Leslie E Wehner & Cameron G Thies, The nexus of populism and foreign policy: The case of Latin America
- Alise Coen, Can’t be held responsible: Weak norms and refugee protection evasion
- Diana A A Reisman, Apportioning Fault for Performance Corruption in Investment Arbitration
- Jörg Risse & Antje Baumann, The permissible scope of witness testimony in arbitral hearings—five proposed rules
- Donny Trinh Ba Duong, The evolution of summary procedure in investment arbitration: past, present and future
- Caline Mouawad & Jessica Beess und Chrostin, The illegality objection in investor–state arbitration
- Dimitrios Katsikis, Breach of the agreement to arbitrate due to third party conduct
- Eric Leikin & Clemens Treichl, Pick Your President: Why and How Parties Should Seek to Agree on a Presiding Arbitrator
- Recent Developments
- Aditya Prasanna Bhattacharya, Harsh Tiwari, & Kashish Makkar, Indian Golf Union and the Lingering Ghost of common law severability in India
- Jie (Jeanne) Huang & Dan Xie, Data Protection Law in Investment Arbitration: Applicable or Not?
- Gordon Nardell & Laura Rees-Evans, The agreement terminating intra-EU BITs: are its provisions on ‘New’ and ‘Pending’ Arbitration Proceedings compatible with investors’ fundamental rights?
- Shen Wei, Guarding the Great Wall?—jurisprudential review of treaty interpretative tools in Chinese BIT-based arbitration cases
- George Burn & Kevin Cheung, Section 44 of the English Arbitration Act 1996 and third parties to arbitration
- Ann Manov, Shooing the vultures? The case for investment treaty protection of sovereign debt
- Case Notes
- Sayantan Bhattacharyya & Moksh Ranawat, The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd
- Tamar Meshel, International commercial arbitration in Canada after Uber Technologies Inc v Heller
- Prosecutor v. Ayyash et al. (Special Trib. Leb.), with introductory note by Michael Lysander Fremuth
- The Abraham Accords: Normalization Agreements Signed by Israel with the U.A.E., Bahrain, Sudan, and Morocco, with introductory note by Joel Singer
- Privacy Int'l v. Secretary of State for Foreign & Commonwealth Affairs and La Quadrature du Net v. Premier ministre (C.J.E.U.), with introductory note by Jack Maxwell & Joe Tomlinson
- Nina J. Lahoud, What Fueled the Far-Reaching Impact of the Windhoek Declaration and Namibia Plan of Action as a Milestone for Gender Mainstreaming in UN Peace Support Operations and Where Is Implementation 20 Years Later?
- Hanna Bourgeois, ‘All Necessary Means’ to Protect Civilians: The Interpretation and Implementation of UN Security Council Mandates Authorising the Protection of Civilians
- Mohammad Tarequl Islam, The Dynamics of Security Sector Reform in Liberia: Challenges and Opportunities for Achieving the Intended Reforms
- Mona Ali Khalil, Immunity Is Not Impunity: The Legal Framework Applicable to UN Accountability for the Haiti Cholera Crisis
- Beatrice Lindstrom, When Immunity Becomes Impunity: Rethinking Liabilities for UN Harms
- Thierry Kaiser & Carlijn Ruers, The Application of International Humanitarian Law to Peacekeepers: The Situation in Mali
- Blanca Montejo & Bojan Stefanovic, The Implementation of the Action for Peacekeeping in Context: A Concrete Analysis of Efforts by the Security Council at Sequencing and Prioritising Mandates
- Céline Giuliani, Advancing Peace through Human Rights in UN Peace Operations: A Policy Perspective on Achievements and the Way Forward