Reasonable people might disagree whether the European Union (EU) is likely to make a significant and commendable contribution to international investment law. This article addresses two issues of relevance for this discussion. First, it considers the appropriateness of evaluating evelopments in international investment law in terms of balance between investor protection and the right to regulate. Second, the contribution of the recent EU practice is briefly examined, finding it less interesting and innovative than one might have expected.
Topic:
International Law, European Union, Regulation, and Finance
The United Nations Security Council (UNSC) is, in many ways, a unique institution. It exercises legislative, judicial and executive powers; operates with few legally binding checks and balances and has even been described as being ‘unbound by law’. The Council has broad powers to maintain international peace and security, most notably under Chapter VII of the UN Charter, and its decisions are binding on UN members. At the same time, some of the Council’s actions have been labelled as ultra vires and the lack of a binding, legal oversight mechanism to reign in Council action has been decried. Accepting that there is a difficulty in imposing legally binding checks and balances on the UNSC, this article argues that approaching the Council’s Chapter VII powers as a form of emergency powers may help to illuminate the role that non-legal restraints can play in curbing its power. In particular, this article uses Oren Gross’ ‘extra-legal measures model’ to conceptualize the Chapter VII regime and restraints upon it. It shows how the extra-legal measures model offers a descriptive account of UNSC action under Chapter VII and then builds on the gaps in the application of the model to the Council to highlight areas for the development of better restraints, in particular, in areas that may be missed by a traditional legal analysis.
Topic:
International Law, United Nations, International Security, and Peacekeeping
In ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’, Devon Whittle analogizes the United Nations Security Council’s Chapter VII powers to domestic emergency powers. He then seeks to apply the extra-legal measures (ELM) model of emergency powers, which I developed some 20 years ago, to exercise by the Council of its Chapter VII powers. This brief comment seeks to expand the discussion of ELM in international affairs beyond the collective security system by exploring the application of ELM in the setting of unilateral humanitarian intervention.
Topic:
International Law, Treaties and Agreements, United Nations, International Security, and Humanitarian Intervention
This article approaches two International Court of Justice judgments on the cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008) from the perspective of the law of territory in the post-colonial context, showing that the Court managed to free the concepts of ‘original title’ from ‘terra nullius’. It is prefatorily explained that the concepts of ‘original title’ and ‘terra nullius’, which operate in combination, had both functioned as bases for the traditional law of territory and as unilateral justification for colonization by European powers. By contrast, analysis of the two recent judgments illustrates that the Court contrived to separate the two concepts from the context of colonialism by avoiding the determination of the islands as ‘terra nullius’ and expanding the concept of ‘original title’ while preserving the existing framework of law of territory. The problem is presented with a caveat, however; overemphasizing the significance of ‘original title’ in the post-colonial context might lead to disregard for the foundations of title to territory, that is effective control of territory and its legitimizing logic, on which the territorial order of today’s international society is based.
Topic:
International Law, Post Colonialism, Territorial Disputes, and Courts
State ownership is thriving. Emerging economies are extending their growing economic power outward through sovereign wealth funds. State-owned multinationals have become top sources of foreign direct investment. Bailouts have recreated powerful state ownership structures in regions where private ownership has traditionally prevailed. The state is back – in shareholder capacity. Approaching the rise of state ownership from a human rights perspective, this article submits that a new conceptualization of state ownership function is emerging. State ownership provides a strong link connecting corporate actions with the international human rights system. Yet the conventional methods used to integrate state ownership in human rights treaty bodies’ discretion seem unable to grasp the changing economic role of governments in the global economy. The article suggests that the notion of the ‘public shareholder’, introduced by the European Court of Human Rights in Heinisch v. Germany (2011), provides a useful lens for interrogating how states should govern the human rights performance of corporations through ownership. When exposed to the recent practice of a range of United Nations treaty bodies, internationalizing state ownership activity becomes framed in human rights terms. In this vision, the whole ownership function becomes a site for turning companies in the state’s portfolio into responsible corporate citizens who take the impact of human rights seriously. Specifically, treaty bodies should advise states to seek human rights governance through private mechanisms in the capacity of the shareholder. In the process, human rights’ checks and balances should constitute a counterweight for market-based initiatives that regulate state activity in the capacity of the shareholder.
Topic:
Human Rights, International Law, Treaties and Agreements, Foreign Direct Investment, Economies, and Courts
Reflecting upon the ambiguous relationship between international civil servants and international law in both theory and practice, this review essay examines several recent books that address the life and legacy of Dag Hammarskjöld, the second Secretary-General of the United Nations. Drawing upon recent theoretical work regarding international organizations, the essay argues that the authority of international civil servants should be understood as operating through three distinct yet interconnected modalities of discourse and practice: legal, moral and expert. Moreover, a comprehensive account of the authority exercised by international civil servants must take account of how they respond to any tensions that arise between their bases of authority as well as of their shifting relations with other ‘global governors’. The essay considers the depiction of Hammarskjöld by each of the books under review, highlighting the sometimes overlooked interconnections between the different sources of authority upon which he drew and suggesting some starting points for an alternative, integrated account of his thought and practice.
Topic:
Civil Society, Diplomacy, International Law, International Organization, and Humanitarian Intervention
The two collections fill a major gap in law and globalization scholarship. In rich detail, they supply empirical material on the current transformation of law that has long been sought after. The
studies in the first volume stand out in particular as they employ methods of empirical social
research and focus on change in non-Western countries. From this material, other researchers
will greatly benefit in the years to come.
At the same time, the two volumes add a highly convincing conceptual approach to the field.
Indeed, their guiding category of the transnational is very promising in contrast to many others
proposed for similar purposes. As the editors properly assert, it best expresses that most patterns
of order neither reach out globally nor circumvent the state. Indeed, the recursive interaction
of different levels of order appears to be one of the dominating modes of law production today,
which is well captured by the term.
Nevertheless, some obscurity and doubt about the conceptions of transnational legal ordering and order remain.
Topic:
Globalization, International Law, Sociology, and Legal Theory
Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its
democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular
institutions or practices but, rather, of open and possibly oppositional politics. Building on the
work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the
common world, as Arendt might have put it, and presupposes open politics. This politics is, so
to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so
much winning but taking part; what matters is not so much which policies will be adopted but
the political process itself. Following Aristotle, taking part in public affairs is viewed as the most
salient manifestation of human excellence: man being a political animal, he can do no better
than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.
Topic:
International Law, International Organization, Political Theory, and Democracy
Michael Fakhri in his book Sugar and the Making of International
Law takes inspiration from Antony Anghie, a scholar who famously disrupted prevalent conceptions of public international law. Using sugar as a ‘trace element’, Fakhri follows
Anghie’s lead in retracing the historical origins of international trade law in order to challenge
pervasive perceptions about this legal regime. What he is keen to demonstrate is that free trade,
like state sovereignty, is not something that international institutions are merely officiating.
Rather, the meaning of this concept has shifted over time as it has been applied by different
institutions and actors within the international legal order to differential effect. It has been both
conditioned by, and received the conditioning of, broader political, economic and social forces.
Critically, it is as much the product of international institutions governing trade as it is their
purpose.
Topic:
Agriculture, Imperialism, International Law, International Trade and Finance, History, World Trade Organization, and Economy
The volume under review publishes the proceedings of a colloquium held at the University of
Paris in July 2010. The aim of this colloquium was to fill a lacuna that characterizes the contemporary francophone international legal scholarship. Indeed, as noted by the editors in their foreword to the book, after a prolific period during the 1970s and 1980s, French and francophone
scholars have gradually lost interest in Third World-related issues and ignored this topic in their
research and teachings. This trend is regrettable and unfortunate because despite some progress and improvements, international relations are still marked by significant inequalities and
disparities between rich and poor countries, while several regions of the world remain in a situation of extreme poverty. Therefore, there is an urgent need to renew and revive the reflection of
French-speaking international lawyers on their discipline by inciting them to critically question
the present existence and effects of the rules of international law relating to the Third World
in the current globalized context. To achieve this goal, Mark Toufayan, Emmanuelle TourmeJouannet and Hélène Ruiz Fabri had the idea of bringing together, in Paris, francophone and
anglophone scholars and prominent representatives of the critical Third World Approaches to
International Law (TWAIL). TWAIL scholars were invited to expose their ideas and thoughts,
and their French-speaking counterparts were asked to react and comment on these thoughts.
Topic:
Development, Human Rights, Imperialism, International Law, Post Colonialism, Third World, and History