Public International Law Discussion Group (Part II)

What explains the rise of investor-state arbitration? To the extent that investor-state arbitration had founding fathers, what were their motivations, what constraints did they have, what was their thinking? Using documents from the American, British, German, and Swiss archives, this talk will revisit three moments: the initial vision for a standalone arbitration convention (the ICSID Convention), European governments’ decisions to add consent to arbitration into their investment treaties, and America’s late embrace of investor-state arbitration. Revisiting these moments with internal documents suggests a need to rethink conventional narratives about who and what drove the development of investor-state arbitration. Taylor St John is Lecturer in International Relations at the University of St Andrews. She researches the history and politics of investment law. Her monograph, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences, was published by Oxford University Press in 2018. She is currently researching ISDS reform processes, and co-authors the EJIL Talk! blogs on the UNCITRAL negotiations with Professor Anthea Roberts. She was previously Postdoctoral Research Fellow, PluriCourts, University of Oslo and before that, Fellow in International Political Economy, London School of Economics. She received a DPhil and MSc from the University of Oxford.

Investment treaties are often said to have two principal effects for the states that enter into them. First, it is asserted that investment treaties act to increase levels of foreign investment in host states. Second, it is said that investment treaties have a positive effect on national governance. Out of their desire to avoid liability for breaches of investment treaties, the argument is made, states will internalize their international legal obligations, reform their policy-making processes, and thereby improve the quality of national governance, notably, the rule of law (the “rule of law” thesis). Although there is substantial empirical scholarship on the relationship between investment treaties and foreign investment flows (the findings of which have been, at best, ambiguous), there has been little empirical research on the effects of investment treaties on national governance. Further, the rule of law thesis is rooted in a traditional, rational-choice theory of the state as an actor making preference-maximizing decisions on the basis of cost-benefit analyses. Given the benefits of compliance and the costs of violation, a rational choice model predicts that states, on balance, will gain more from compliance, and as such, expects them, for the most part, to internalize their obligations and comply with them. There is, however, reason to be skeptical about these assumptions, especially in the developing world. Drawing on eight qualitative empirical case studies, we uncover whether and to what extent a select group of Asian countries – Vietnam, Indonesia, Singapore, Sri Lanka, South Korea, Myanmar, Thailand and India – have internalized their treaty obligations, and what factors have affected this internalization. Furthermore, we assess what impact, if at all, this internalisation has had on national governance. In so doing, our findings shed light on the actual effects of investment treaties, thereby contributing to the emerging field of empirical studies of international investment law (and international law in general), as well as to a growing literature on the significance of international law in Asia. Moreover, building on the public policy literature, we open up the ‘black box’ of the government and public administration and introduce insights regarding how obligations contained in international treaties come to be internalized and diffused within them, and what factors impact whether and the extent to which this happens. Ultimately, compliance with international obligations often rests on the willingness and ability of government officials and public bureaucrats to adhere, yet for the most part, international legal scholarship has had little to say about the intricacies of the internalization and diffusion of international obligations and how international obligations are actually, if at all, incorporated by policy-makers. In this project, we provide reason to believe that the dynamics and complexities of government and public administration, especially in the developing world, makes the diffusion and internalization of investment treaty commitments a far more complex and messy process than proponents of the rule of law thesis have assumed. N Jansen Calamita is the Head of Investment Law and Policy at the Centre for International Law at the National University of Singapore, where he is also Research Associate Professor in the Faculty of Law. He was previously Director of the Investment Treaty Forum at the British Institute of International and Comparative Law and has held posts at the University of Birmingham and the University of Oxford. Prior to entering academics, Mr Calamita served in the Office of the Legal Adviser in the US Department of State (International Claims and Investment Disputes Division) and as a member of the UNCITRAL Secretariat. He began his career in private practice in New York. He holds Juris Doctor magna cum laude (Boston) and a Bachelor of Civil Law (Oxford). He continues to advise governments on matters relating to international investment and international dispute resolution. He is co-editor (with L Malintoppi) of International Litigation in Practice (Brill) and a member of the editorial board of the Yearbook of International Law and Policy (Oxford University Press).

This talk will examine the legal nature of due diligence, namely whether it is a free-standing obligation under customary international law or a standard by which compliance with specific obligations may be assessed. It will be shown that there is a significant number of common elements in the analysis of due diligence as it is performed by international courts and tribunals, notwithstanding the specificities of the underlying subject matter. In doing so, this presentation will bring into question the validity of the recurring assumption that the content of due diligence differs fundamentally across various branches of international law. Dr Vladyslav Lanovoy is an Associate Legal Officer at the International Court of Justice. He is also a Lecturer at Lille Catholic University and a Teaching Fellow at Queen Mary University of London. He holds a PhD in international law from the Graduate Institute of International and Development Studies in Geneva and is the author of Complicity and its Limits in the Law of International Responsibility (Hart 2016), which was awarded the 2017 Paul Guggenheim Prize in International Law. He has previously worked at Freshfields Bruckhaus Deringer LLP and at the Permanent Court of Arbitration. He has also consulted for the UN Office of the High Commissioner for Human Rights and the UN Environment Programme. His research interests include the law of international responsibility, dispute settlement, the law of the sea, human rights law and international economic law.

Even though UN Security Council resolutions may have major consequences for the disputes and states concerned, some of the resolutions are ambiguous in their meaning. This raises questions about the appropriate means of interpreting Security Council resolutions. In the process of interpreting Security Council resolutions, explanation of votes may have a role. Explanation of votes are not provided for in Security Council Provisional Rules of Procedure. However, members of the Security Council may make statements in connection with their votes. These remarks are in the Council called "statements before the vote" or "statements after the vote". Dr. Klamberg will discuss the phenomena of explanation of votes and their status, including an analysis of explanation of votes made in relation to selected examples of controversial Security Council resolutions. Dr Mark Klamberg is a research fellow during 2018/2019 at the Institute of European and Comparative Law (IECL) and affiliated with Christ Church College, Oxford. He is an Associate Professor, Senior Lecturer in Public International Law at Stockholm University and a visiting lecturer at Edinburgh University. He is currently the principal investigator of the project "Does International Law Matter? The UN Security Council and State Actions" funded by the Swedish Research Council 2018-2021. He has previously been an Associate Professor and Senior Lecturer in Public International Law at Uppsala University. He is the author of several publications on international criminal law, surveillance, privacy and other fields of international law, including 'Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events' (Martinus Nijhoff Publishers, 2013) and 'Power and Law in the International Society - International Relations as the Sociology of International Law' (Routledge, 2015). He is the chief editor of the 'Commentary on the Law of the International Criminal Court' (TOAEP, 2017). He has also published articles in International Criminal Law Review, Journal of International Criminal Justice, Nordic Journal of International Law, Georgetown Journal of International Law and book sections published by Martinus Nijhoff Publishers and Oxford University.

Oceans are increasingly under pressure; be it for the multiplication and diversification of economic activities performed at sea, for the consequences of climate change, or for the deterioration of their environmental health. Several international bodies and a plethora of international instruments regulate, influence and shape what is happening in the oceans. Moreover, actors at different levels of governance participate in what it is commonly called ocean governance. But what is ocean governance? Which are the different actors and instruments involved? How do they interact in dealing with ocean affairs? Those are some of the questions that the Sustainable Ocean project (ERC grant agreement No 639070) deals with in order to answer the overarching research question: how can the law contribute to the sustainable use of the ocean and strike a balance between competing interests at sea? Regime interaction is here analysed and used as a legal modus operandi, as an existing legal behaviour. We do not engage with the debate whether regime interaction is inherently beneficial or detrimental to the international legal order. Similarly, the research project adopts a concept of ocean governance which is mainly descriptive of processes, instruments and actors involved in oceans affairs and management. In this presentation, I would like to present and discuss the partial results of our research which stem from a workshop we organised in April 2019 on ‘Regime Interaction in Ocean Governance: Problems, theories and methods’. The partial results can be synthesised in the this diagram that identifies three categories of interaction (interactive form; interactive substance; interactive process) and that proposes a lens through which analyse and handle instances of interaction. Seline Trevisanut (PhD, Milan; MA, Paris I) is Professor on International Law and Sustainability at Utrecht University and currently principal investigator of the ERC Starting Grant Project ‘Sustainable Ocean’ (2015-2020). Before joining Utrecht in 2012, she taught courses and conducted research at Columbia University, at the European University Institute, at the Max Planck Institute for Comparative Public Law and International Law, at the National University of Singapore and at UC Berkeley. Her publications include inter alia edited volumes on Foreign Investment, International Law and Common Concerns (Routledge 2014), and on Energy from the Sea: An International Law Perspective on Ocean Energy (Brill 2015), and a forthcoming monograph on The International Law of Offshore Installations: Through Fragmentation Towards Better Governance (Cambridge University Press 2019).

This talk will consider the regulation of corporations for the human rights impacts of their activities. It will include the role of legislation, industry sectors and civil society, as well as courts, in regulation of the actions of corporations that abuse human rights. It will use the framework of developments in the area of responsible business conduct, especially of human rights due diligence. Professor Robert McCorquodale is Professor of International Law and Human Rights at the University of Nottingham, barrister at Brick Court Chambers in London, and Founder and Principal of Inclusive Law, a consultancy on business and human rights. He was the Director of the British Institute of International and Comparative Law for 10 years. He has published widely in all these areas, and engaged closely with governments, corporations, international institutions and civil society in his work.

Following a difficult and protracted process, in 2014 the UNGA adopted Resolution 68/268 which set out to strengthen the UN human rights treaty body system. It mandated a further review in 2020. The proposals which are emerging for that review have the potential to radically change the nature of the UN human rights system - but whether for better or worse is keenly contested. In his talk, Malcolm Evans, who has been a participant in these developments, will outline the background to the proposals and offer a personal assessment, from a treaty body perspective, of their significance for the future of the machinery of international human rights protection. Malcolm Evans is Professor of Public International Law at the University of Bristol, UK where he has taught since 1988. His areas of legal specialism include both international human rights protection and the international law of the sea. In the field of human rights his particular interests concern torture and torture prevention and the protection of religious liberty under international law, on both of which he was written extensively. He became a member of the UN Subcommittee for the Prevention of Torture (the SPT) in 2009 and since 2011 has been serving as its Chair. From 2014-2015 he was the Chairperson of the Meeting of Chairs of UN Human Rights Treaty Bodies. From 2002 – 2013 he was a member of the OSCE ODIHR Advisory Council on the Freedom of Religion or Belief. He is also a member of the UK Foreign Secretary’s Human Rights Advisory Group. He has acted as an independent advisor and consultant for numerous international organisations over many years. From 2003-5 he was Head of the School of Law and from 2005-2009 Dean of the Faculty of Social Sciences and Law at the University of Bristol. From 2016-2018 he was a member of the Commission on Religious Education established by the Religious Education Council. Since 2015 he has been a Member of the Independent Inquiry into Child Sexual Abuse in England and Wales (IICSA). He is General Editor of the International and Comparative Law Quarterly and Co-Editor in Chief of the Oxford Journal of Law and Religion. Major published works include: Religious Liberty and International Law in Europe (CUP, 1997), Preventing Torture (OUP, 1998), Combating Torture in Europe (Council of Europe, 2002), Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe/Brill, 2009), The Optional Protocol to the UN Convention against Torture (OUP, 2011), The Changing Nature of Religious Rights under International Law (ed) (OUP, 2015), Preventing Torture in Europe (Council of Europe, 2018). He is Editor of International Law (OUP, 5th ed, 2018) and Blackstone’s International Law Documents (OUP, 13th ed, 2017).

War does not escape the transformations global governance has experienced in the past decades. The research presented identifies a move from a binary War-Peace framework to a global security governance, characterized by techno-managerial normative assemblages aiming at taming risk.Core to the project of international law throughout the 20th century, peace has been occupying a central role in the development of international legal regimes aiming at governing armed violence. But the promise of peace is being increasingly sided by an adjacent, concurrent project, one that promises a more secure world, where risks are forecasted and mitigated or are at least measured. Global security aims at preventing violence and conflict together with health, financial and environmental crises that are predicted and mapped to be better managed. Lists, corporate social responsibility instruments, indicators, ratings and algorithmic devices – the instruments that regulate global security – are produced by means of a technical expertise, resting on a mathematical and behaviorist rationality aiming at taming risk. International legal categories and distinctions do not disappear but are transformed. War and peace are being reimagined and placed on a spectrum of measurable violence and insecurity, combatant and civilian categories are fragmented and made increasingly dependent on more contained behavioral patterns. Dr Delphine Dogot’s research is at the intersection of law, philosophy and social sciences in particular in relation to globalization and technology. She is a Research Fellow at the Law Department of HEC Paris where she develops several research projects investigating the transformation of law and regulation when embedded with algorithmic and data-driven technologies. Delphine Dogot holds a Ph.D. in Law from Sciences Po, a Master's and Bachelor’s degree in Law from the Université Paris 1 Pantheon-Sorbonne, as well as Master's degree in Sociology and a Bachelor's degree in Philosophy from the Université Paris 4 Paris-Sorbonne. She has previously been Exchange Researcher at Harvard Law School, Fellow at the Perelman Centre for Legal Philosophy (ULB), and OXPO Fellow at Nuffield College, University of Oxford. Delphine writes in transnational legal theory, international and global law, conflict and security law and law and technology. She has taught or is currently teaching courses on company law, contract law, global law, international law, philosophy and theory of human rights, legal theory & methodology and at ULB, Sciences Po, HEC Paris, Université Paris II Panthéon-Assas and Faculté Libre de Droit de Lille.

The presentation will discuss the approaches to writing such reference works (based on the speaker's experience with the Update of the ICRC Commentaries to the 1949 Conventions, and the Max Planck Encyclopedia of International Procedural Law). The presentation will discuss the approaches to writing such reference works (based on the speaker’s experience with the Update of the ICRC Commentaries to the 1949 Conventions, and the Max Planck Encyclopedia of International Procedural Law). Then a reflection will follow on how we - as researchers - use these reference works. Are references to reference works allowed in an academic paper? Are they objective, are they pointing us to existing debate, or do they make us all lazy? Reference works are an everyday presence in academic work, but should we reflect more about them? Liesbeth Lijnzaad is judge at the International Tribunal for the Law of the Sea (Hamburg) since 2017. She is a former Legal Adviser of the Netherlands Ministry of Foreign Affairs and head of its international law department (2006 - 2017). She is a member of the Permanent Court of Arbitration and of the San Remo Institute of International Humanitarian Law. Professor dr E.Lijnzaad is also endowed professor Practice of International Law at Maastricht University. She studied law and history, receiving master’s degrees in international law (1985) and Dutch law (1987) from the University of Amsterdam, and holds a PhD in international law from Maastricht University in 1994.

Since the 24 June 2016, the politics of Brexit – in both the UK and the EU – has driven the negotiations and discussion surrounding the UK's departure from the EU. It is the international legal framework, however, that has framed those negotiations and will shape the UK's future trading relationship with the EU and the rest of the world after March 2019, in whatever form Brexit takes. Andrew Hood will examine some of the structural and practical realities of public international law that have governed – and will continue to govern – the future of the UK and the EU in a post-Brexit world. About the speaker: Andrew has almost 20 years of experience as an EU, trade, regulatory and public international lawyer working in both the public and private sectors. He is currently a partner at the law firm Fieldfisher and has previously spent over 13 years as a lawyer and negotiator for the UK Government, including as a lawyer at the Foreign and Commonwealth Office, a UK negotiator in Brussels, Head of International and EU Law at the Attorney General’s Office and the General Counsel in 10 Downing Street for Prime Minister David Cameron.

An analogy between States and international organizations has characterised the development of the law that applies to intergovernmental institutions on the international plane. That is best illustrated by the work of the International Law Commission on the treaties and responsibility of international organizations, where the Commission for the most part extended to organizations rules that had been originally devised for States. The talk will reflect on the foundations and limits of the assumption that the two main categories of international legal subjects are analogous for certain purposes, and discuss the elusive position that international organizations occupy in the international legal system. About the speaker: Fernando Lusa Bordin is a Thornely Fellow and Lecturer in Law at Sidney Sussex College and an Affiliated Lecturer at the University of Cambridge. His research focuses on topics of public international law, including law-making, international organizations and the intersection between international law and legal theory. He holds an LL.B. from the Federal University of Rio Grande do Sul (Brazil), an LL.M. from New York University, and a PhD from the University of Cambridge. He is a recipient of the Yorke Prize (University of Cambridge), Young Scholar Prize (International & Comparative Law Quarterly) and the Diploma of Public International Law (Hague Academy of International Law).

This talk will discuss elements of a research project that explores the evolution of the law of the sea over the course of the 20th century It will focus on the emergence of the seabed as an area of political, economic and technological interest, and trace its subjection to national and international regimes. Calling attention to the legally constructed imaginary of the seabed as a space distinct from the above water, the talk will re-examine views of both the ocean and the law, which are commonly held, and presented as natural and therefore necessary. Suggesting instead a greater focus on the contingencies and false contingencies informing the development of the law, the talk will join a small but growing literature on the unnatural history of the sea. About the Speaker: Surabhi Ranganathan is a University Lecturer in Law and a Fellow of King's College at the University of Cambridge. She is also a fellow of the Lauterpacht Centre and the author of Strategically Created Treaty Conflicts and the Politics of International Law (CUP 2014). With an interest in the history of international law, natural resources and distribution, her current work focuses on the law of the sea and global commons.

The absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment is under considerable pressure. This talk will explore how the prohibition is understood, questioned, and flouted, and trace continuities between torture and other dimensions of our securitised and unequal societies. Distilling key challenges for the prohibition, including those often overshadowed by the ubiquitous ‘ticking bomb’ scenario and ther prominent areas of concern, it will consider how those committed to the prohibition can meaningfully respond to them. About the Speaker Dr Natasa Mavronicola is Senior Lecturer in Law at Birmingham Law School, University of Birmingham. Prior to joining Birmingham Law School, she was a Lecturer in Law at Queen’s University Belfast (2013-16). Since 2017, she serves as Advisor to the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professor Nils Melzer. She has conducted research for the Council of Europe and the Irish legislature and has published work in journals such as the Human Rights Law Review and the Modern Law Review. Her work on the prohibition of torture includes the recent article ‘Is the Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law? A Reply to Steven Greer’ (2017) 17 Human Rights Law Review 479. She completed her PhD in Law at the University of Cambridge, the BCL at the University of Oxford, and the LLB (Hons) at University College London. Her main research focus is human rights law.

Ever since the trial against the major war criminals of World War II before the International Military Tribunal at Nuremberg the institution of 'punishment' has been an integral part of the international legal system. Nowadays a considerable number of perpetrators of crimes under international law – that is: genocide, crimes against humanity, and war crimes – are being sent to jail by international judges. But why and to what aim do we punish individuals for their involvement in mass atrocities? How can we justify punishment by international criminal courts and tribunals vis-à-vis the affected individual? Or more generally: What are and what should be the rationales for punishment in international law? Among the (few) answers given to these questions one relates to the claim that international prosecutions and punishment would contribute to the restoration and maintenance of peace ('peace through punishment'). Some scholars (and Courts) simply want to apply the theoretical concepts from the domestic context, such as retribution, deterrence, rehabilitation, norm stabilisation and so forth, to the realm of crimes under international law that ('domestic analogy'). The paper will present some preliminary reflections on these issues. About the speaker Florian Jeßberger is Professor of Law at the Faculty of Law, Universität Hamburg, where he holds the Chair in Criminal Law, Criminal Procedure, International Criminal Law, and Modern Legal History and serves as the Associate Dean for Research & International Affairs. Currently (Michaelmas term) he is a Short-Term Visiting Fellow at Jesus College in the University of Oxford. Before joining Universität Hamburg in 2010, Florian was the Lichtenberg Professor of International and Comparative Criminal Law at Humboldt-Universität zu Berlin. A co-editor of the Journal of International Criminal Justice (Oxford University Press) Florian authored numerous articles and three books, the most recent of which is ‚Principles of International Criminal Law' published by Oxford University Press (4th ed. forthcoming 2019; with G. Werle) and translated into various languages (German, Spanish, Chinese, Russian, Italian). He has edited or co-edited four scholarly volumes and four special issues or symposia in peer reviewed journals. Currently, Florian is leading a team of scholars conducting research into the seminal Stammheim-Trial (1974-1977) of the leaders of the German terrorist group Rote Armee Fraktion. In another multi-year project he co-ordinates interdisciplinary research into strategic litigation in the area of gross violations of human rights.

The talk will review the Trump administration’s record in international and national security law over the last 18 months, and will address challenges ahead, including the administration’s counter-terrorism policies and approach to international agreement and international courts, including the International Criminal Court and International Court of Justice. John Bellinger heads the public international law practice at Arnold & Porter in Washington, DC, and is Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He previously served as The Legal Adviser to the Department of State from 2005–09, under then-secretary of state Condoleezza Rice and as Senior Associate Counsel to the president and Legal Adviser to the National Security Council at the White House from 2001–05. He represented the United States in Mexico v. United States (Medellin) before the ICJ. In 2016, he drafted the letter signed by 50 former Republican national security officials that stated Donald Trump ‘lacks the character, values, and experience to be President.

The 21st century has seen significant progress and recent regression in terms of entrenchment of the rule of law. These developments have occurred not only in the domestic context but also within the international sphere. This presentation by Kimberly Prost will explore some of these ‘rule of law’ changes and challenges within the international legal order. The establishment of the international tribunals and the International Criminal Court represents a landmark advancement in terms of international criminal law and international humanitarian law. It also has contributed to establishing a rule of law culture. The background which led to the creation of these bodies will be explored along with consideration of the fundamental concepts underpinning them and an examination of the current key challenges to maintaining and strengthening these institutions and international criminal justice more broadly. There will also be a brief reflection on ‘law making’ by the Security Council and whether this constitutes an appropriate role for the Council in terms of progressing the rule of law. In particular resolutions 827 (1993) and 955 (1994) which established the ICTY and the ICTR, resolution 1373 (2001) related to measures to counter terrorism and resolutions 2178 (2014) and 2396 (2017) on Foreign Terrorist Fighters will be considered. Finally the presentation will explore the role of the Ombudsperson for the Security Council Al-Qaida Sanctions Committee and consider its successes and failures in terms of enhancing the rule of law in Security Council practice.

Marking the 20th Anniversary of the Rome Statute of the International Criminal Court. Twenty years after the adoption of the Rome Statute of the International Criminal Court, the ICC is thought to be in crisis. Despite the many successes, including completing the institution-building process and the Court's emerging jurisprudence, the ICC is also facing a number of challenges. Universality, independence, effectiveness and efficiency, but also cooperation and the relationship with national courts have challenged the ICC’s operation to date. In light of the 20th anniversary of the Rome Statute, the lecture considers some of the Court’s achievements and reviews the above challenges affecting the fulfilment of the ICC’s mandate to end impunity.

Professor Akhavan will speak about his recent book In Search of a Better World: A Human Rights Odyssey, the 2017 CBC Massey Lectures which became the best-selling non-fiction book in Canada. Professor Akhavan will speak about his recent book In Search of a Better World: A Human Rights Odyssey, the 2017 CBC Massey Lectures which became the best-selling non-fiction book in Canada. Part memoir, part manifesto, it is a "powerful survey of some of the major human rights struggle of our times." More information on the book can be found http://www.cbc.ca/radio/ideas/the-2017-cbc-massey-lectures-in-search-of-a-better-world-1.4222812 Payam Akhavan is Professor of International Law at McGill University in Montreal, Canada, Member of the Permanent Court of Arbitration, and former Legal Advisor to the Prosecutor's Office of the International Criminal Tribunal for the former Yugoslavia at The Hague.

A presentation of the new principles of shared responsibility in international law The event featured a presentation of the new principles of shared responsibility in international law which supplement as well as amend the 2001 Articles on the Responsibility of States as well as the 2011 Articles on the Responsibility of International Organizations. The principles have been prepared by a group of experts of the law of international responsibility and will soon be disseminated.

Arbitrators have many powers – express, implied, and those inherent in the very process of arbitration. Disputes that involve corruption put into question the breadth of those powers.