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.
Friday, September 20, 2019
Claussen: The International Claims Trade
Nicholson: Statehood and the State-Like in International Law
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
New Issue: Global Trade and Customs Journal
The latest issue of Global Trade and Customs Journal (Vol. 14, no. 9, 2019) is out. Contents include:- Moritz Wüstenberg, Anti-dumping Off the Rails: The European Union’s Practice to Alleged Input Dumping
- Stéphanie Noël & Weihuan Zhou, EU’s New Anti-dumping Methodology and the End of the Non-market Economy Dispute?
- Laura Fraedrich, Chase Kaniecki, Diego Ortega, & John Cheretis, Navigating the New CFIUS: Reflections on FIRRMA and the Pilot Programme
- Ziad Al Enizi & Ramzi Madi, The Compatibility of Arab Laws and Modern International Trends with the Freedom of Parties to Choose the Law Applicable to International Trade Contracts
Conference: The London Conference on International Law: Engaging with International Law
Amoroso & Tamburrini: Filling the Empty Box: A Principled Approach to Meaningful Human Control over Weapons Systems
Wednesday, September 18, 2019
Conference: The League of Nations and International Law during the Interbellum
Tuesday, September 17, 2019
Inaugural Issue: Jus Cogens
- Jean L. Cohen, Populism and the Politics of Resentment
- Wojciech Sadurski, Public Reason in the Universe of Reasons
- Frank I. Michelman, Political-Liberal Legitimacy and the Question of Judicial Restraint
- Robert E. Goodin, Rough Justice
Agon: International Adjudication on Trial: The Effectiveness of the WTO Dispute Settlement System
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.
New Issue: Journal of International Wildlife Law & Policy
The latest issue of the Journal of International Wildlife Law & Policy (Vol. 22, no. 2, 2019) is out. Contents include:- 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
AJIL Unbound Symposium: A Focus on Ethics in International Courts and Tribunals
Monday, September 16, 2019
Call for Papers: Contested Norms of International Peace and Security Law
New Issue: Criminal Law Forum
The latest issue of Criminal Law Forum (Vol. 30, no. 3, September 2019) is out. Contents include:- 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
New Issue: Global Environmental Politics
- 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
New Issue: International Legal Materials
- 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
New Issue: Review of International Studies
- 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
New Issue: Jus Gentium: Journal of International Legal History
- Articles
- Anthony Carty, British and French Archives Relating to Ownership of the Paracel Islands: 1900-1975
- Ryan Greenwood, The Just War in Florentine Political Discourse: c. 1200-1400
- Thomas Schultz & Jason Mitchenson, The History of Comity
- Vladimir Rjéoutski, Derek Offord, & Gesine Argent, French as a Diplomatic and Official Language in Imperial Russia
- W. E. Butler & V. S. Ivanenko, Baron M. A. von Taube: Historian of International Law
- Li Chen, The Making of China’s Foremost Diplomat and International Judge
- Olga Butkevych, International Law as a Living Legal System: Eugene Ehrlich’s Conception in Modern Times
- Notes and Comments
- W. E. Butler, On the Fate of the Grabar Doctoral Dissertation and Degree
- O. A. Gavrylenko & T. L. Syroed, Classical and Modern Traditions in Kharkiv University: International and European Law
- William E. Butler & Michael Kwon, Manning’s Commentaries on the Law of Nations
Chesterman, Owada, & Saul: The Oxford Handbook of International Law in Asia and the Pacific
The growing economic and political significance of Asia has exposed a tension in the modern international order. Despite expanding power and influence, Asian states have played a minimal role in creating the norms and institutions of international law; today they are the least likely to be parties to international agreements or to be represented in international organizations.
That is changing. There is widespread scholarly and practitioner interest in international law at present in the Asia-Pacific region, as well as developments in the practice of states. The change has been driven by threats as well as opportunities. Transnational issues such as climate change and occasional flashpoints like the territorial disputes of the South China and the East China Seas pose challenges while economic integration and the proliferation of specialized branches of law and dispute settlement mechanisms have also encouraged greater domestic implementation of international norms across Asia. These evolutions join the long-standing interest in parts of Asia (notably South Asia) in post-colonial theory and the history of international law.
The Oxford Handbook of International Law in Asia and the Pacific brings together pre-eminent and emerging specialists to analyse the approach to and influence of key states of the region, as well as whether truly 'Asian' trends can be identified and what this might mean for international order.
Call for Submissions: EJIL Symposium on "Inequalities in International Law"
CALL FOR PAPERS: EUROPEAN JOURNAL OF INTERNATIONAL LAW
Inequalities in International Law: The EJIL Symposium 2021
International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.
We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.
The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.
Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.
Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?
The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:
Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.
International Economic Law: Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.
Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?
Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?
Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?
After ‘After Hegemony’: The emergence of Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world's hegemonic power have triggered new approaches to international law making in recent years. These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future?
We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.
The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020.
Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)eu by 1 November 2019.
New Volume: British Yearbook of International Law
- In Memoriam
- Iain Scobbie, Out of the Shadows: An Appreciation of Sir Elihu Lauterpacht’s Contribution to the Doctrine of International Law
- Article
- Martin Clark, A Conceptual History of Recognition in British International Legal Thought
- Symposium on the Iraq Inquiry
- Rosalyn Higgins, Introduction to the Symposium
- Christian Henderson, Reading Between the Lines: The Iraq Inquiry, Doctrinal Debates, and the Legality of Military Action Against Iraq in 2003
- Nico J. Schrijver, The Dutch Committee of Inquiry on the War in Iraq and the Basis in International Law for the Military Intervention
- Michael Wood, The Iraq Inquiry: Some Personal Reflections
- Matthew Windsor, The Special Responsibility of Government Lawyers and the Iraq Inquiry
- Tanja Aalberts & Lianne J. M. Boer, Entering the Invisible College: Defeating Lawyers on Their Own Turf
- Mark Phythian, Intelligence Failure as a Mutually Reinforcing Politico-Intelligence Dynamic: The Chilcot Report and the Nature of the Iraq WMD Intelligence Failure
- Yolanda Gamarra, Parliamentary Control of the Deployment of Spanish Armed Forces Abroad in the Post-Iraq Era
- Charlotte Peevers, Media Spectacles of Legal Accountability in the Reporting of an Official History
Call for Papers: International Law and Distribution: Sustainable Development, Security, and the Governance of Resources
Thursday, September 12, 2019
Menkes: The Legality of US Investment Sanctions against Iran before the ICJ: A Watershed Moment for the Essential Security and Necessity Exceptions
International courts and tribunals so far have shown reluctance to delimit the normative scope of the essential security and necessity exceptions in international economic law. Legal scholars have also refrained from identifying the point of equilibrium between maintaining the core protections of international law and allowing for necessary flexibility in its application. This article argues that such stances are now untenable. The unilateral US withdrawal from the Iran nuclear deal, and the reintroduction of sanctions, has challenged the multilateral order. Although the sanctions resemble earlier measures, violation of the deal and of United Nations Security Council Resolution 2231(2015) has altered the normative context. The threat to the stability of the post-war multilateral order by a permanent member of the Security Council is unique. The author shows why Iran’s recourse to the International Court of Justice (ICJ) in this context should become a landmark case for international economic law and how it traps the ICJ in a gilded cage.
Conference: Extraterritorial Human Rights Obligations in the Age of Reemerging Nationalism - Are They Really Justified?
The academic debate on the extraterritorial application of human rights is intense and sophisticated. In the last few years, it has often been taken for granted that such extraterritorial obligations on the part of states exist and the research focus has turned to their scope and the modes of implementing them. At the same time, some of the duty-bearers at stake still question their legitimacy. With rising nationalist tendencies in all parts of the world, this is unlikely to change soon. Furthermore, philosophical attacks on the idea of human rights in general and their universality in particular have increased, backed prominently by revisionist historical work. If extraterritorial application of human rights shall be realized and implemented in practice, it seems necessary to return to addressing the foundational question of their justifiability as well as counter arguments that promote a territorial limitation of states’ human rights obligations. By combining legal and philosophical perspectives, this is the aim the workshop hopes to achieve.
Wednesday, September 11, 2019
New Issue: World Politics
The latest issue of World Politics (Vol. 71, no. 4, October 2019) is out. Contents include:- Research Articles
- Milena Ang & Monika Nalepa, Can Transitional Justice Improve the Quality of Representation in New Democracies?
- Egor Lazarev, Laws in Conflict: Legacies of War, Gender, and Legal Pluralism in Chechnya
- Timothy Frye, Ora John Reuter, & David Szakonyi, Vote Brokers, Clientelist Appeals, and Voter Turnout: Evidence from Russia and Venezuela
- Sarah Zukerman Daly, Voting for Victors: Why Violent Actors Win Postwar Elections
- Jan P. Vogler, Imperial Rule, the Imposition of Bureaucratic Institutions, and their Long-Term Legacies









