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Home Articles posted by Bart L. Smit Duijzentkunst

70 Years of the International Law Commission: Drawing a Balance for the Future

Published on May 3, 2018        Author:  and

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This post, and its sister post on OpinioJuris, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. From its first session, in 1949, the Commission has played an indispensable role in the promotion of the “progressive development of international law and its codification”. Yet the desire to “codify” international law – to formulate and systematize rules of international law in order to avoid conflicting norms and enhance legal certainty – predates the Commission by many decades, if not centuries. An exhibit exploring the history and the achievements of the Commission is currently on display in the Visitors Lobby of the General Assembly Building at the United Nations Headquarters in New York. Here are five things you may not know about the International Law Commission and the codification movement from which it emerged. Read the rest of this entry…

 

Of Rights and Powers: Waiving Investment Treaty Protection

Published on December 9, 2013        Author: 

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BartBart L. Smit Duijzentkunst is a PhD Candidate at Gonville and Caius College, University of Cambridge.

In November, the media reported that Colombia intends to ask foreign investors vying to construct a $26 billion road project to waive their power to bring claims under an investment treaty. Instead, the dispute would have to be resolved through domestic arbitration.

Until now, the question of a waiver of investment rights remained a mere academic exercise. It ties in with the lively debate, including here on EJILTalk!, over the position of the investor enjoying investment treaty protection—in particular whether investors can be considered right holders under investment treaties. Over the last few years, arbitrators (see here, here and here), advocates (see, for example, here and here) and academics (see, inter alia, here, here, here, here, here and here) have all had their say on this issue.

Now it seems that the debate over a waiver will move from theory into practice. Yet before we push theory to the side, I would like to suggest that, in this case, it can help us to identify, if not the answers, at least the correct questions to ask in this debate. Read the rest of this entry…