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UNCITRAL and ISDS Reform: Plausible Folk Theories

Published on February 13, 2020        Author:  and

 

As observers of the UNCITRAL process, we watch the debates with great interest, writing about the emergence of different camps, giving perspectives on how the process fits within broader geopolitical developments, and offering potential models for moving forward. One thing that we are often struck by is how some of the field’s underlying narratives are being contested and reframed. In any reform process, some scripts about the old system are kept and others are discarded or rewritten. What does that process look like? At UNCITRAL in late January, we were able to watch it occur with respect to one long-held narrative: that investment treaties with investor–state arbitration are important for attracting and retaining foreign investment.

Plausible Folk Theories

Terence Halliday, a professor of the sociology of global governance and a long-time observer of UNCITRAL, coined the term ‘plausible folk theories’ to refer to the way in which ‘vast enterprises of global regulation and lawmaking [often] proceed on weakly founded justificatory rhetorics’. What he means by this is that many rules and regulations are passed at the global level based on assertions that are not subject to empirical testing. Instead, negotiators and policy makers frequently rely on assertions that sound reasonable but remain unverified.

A plausible folk theory isn’t necessarily wrong about the facts, it just isn’t verified. It may be contrary to empirical evidence, it may not. In the absence of factual support, what makes a folk theory plausible? Parsimony (it is simple), face validity (it sounds right), rhetorical compactness (it can be easily expressed), ambiguity (it papers over divisions), affinity with extant beliefs (it accords with prior assumptions), and unexamined premises and logics (it relies on assumptions and isn’t designed to withstand rigorous testing). Of all of these, the first two are probably the most important: does it have the simple sound of truth?

Arguably, the investment treaty system has long been built on plausible folk theories. If asked why states sign investment treaties, most people in the field historically would have answered ‘because it depoliticizes investment disputes’ or ‘because it increases foreign investment’ or ‘because it contributes to the rule of law’. These arguments sound right. They are plausible. They have the sound of truth to them. Yet, as the field has evolved, these claims have come under scrutiny in the academic literature and some have not stood up well. But is this evidence used in global governance debates? If not, why? Read the rest of this entry…

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UNCITRAL and ISDS Reforms: What Makes Something Fly?

Published on February 11, 2020        Author:  and

 

When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than others? Are you moving toward a safe landing zone, even if it is some distance away? The second concerns the products you are developing in those negotiations. Are some options more aerodynamic than others? Are some more likely to achieve lift off? What component parts need to be designed and built? Is there an overall plan about how the pieces might be put together in the end?

These are questions we thought about as we watched the UNCITRAL process unfold in late January. On one level, it might have been the week when one could have expected to see some turbulence. Since the process started three years ago, this was the first time that the Multilateral Investment Court was formally on the agenda for discussion and it is clear that the views of states are divided on its merits. But on Monday, the Chair adeptly steered the group from high level questions (Is an investment court better than ISDS? Is a particular state for or against such a court?) to more technical engineering work (e.g., What are the ways of constructing an appeal? Which options are available for financing a permanent body? What issues need to be resolved regarding enforcement? What are the options for appointments?).

This approach meant that, instead of being an arena in which states rethink the system’s fundamentals (eg what are the purposes of investment treaties) or engage in high level policy positioning (eg do they support a court or arbitration), the Working Group began to feel a bit like a team of engineers breaking down a complex design challenge into its component parts. Each part undergoes preliminary analysis and troubleshooting in the Working Group, with states suggesting potential models or raising design concerns and considerations with the Secretariat, and tasking the Secretariat with further research and with creating prototypes for each part. Many delegates proved themselves to be serious engineers, coming well-prepared to engage in technical questions. In the process, momentum toward a panoply of reforms seems to be building as participants work collectively on individual design issues. Read the rest of this entry…

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The International Criminal Court Independent Expert Review: reforming the Court: Part III

Published on February 10, 2020        Author: 

 

Editor’s Note: This post is Part III of a three-part series. Read Part I here and Part II here.

In the first two parts of this series of posts, I examined the background to and structure of the 2020 Independent Expert Review (IER) of the International Criminal Court. The IER tasked with making “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole”. In particular, I noted that the IER is not an end in itself, rather it is the beginning of a member State-driven process of Court “review” originating in the ICC Assembly of States Parties (ASP).* (The “term” review seems preferred for its neutrality over “reform”).

The crystallising consensus around this broader process appears to be that it must, naturally enough, be conducted in dialogue with the organs of the Court. As I have already indicated, in my view the best possible outcome of the process would be that the ASP asserts its role as the legislative and governance arm of the Court principally through scrutiny and dialogue. The necessary corollary of judicial and prosecutorial independence is judicial and prosecutorial accountability – albeit that such accountability mechanisms may be exercised with quite a light touch. In an ideal world, the result would be that the Court’s organs would start implementing necessary reforms as a result of scrutiny and in order to avoid the ASP stepping in to legislate (as it can regarding amendments to the Statute and Rules of Procedure and Evidence). The question is the extent to which the organs of the Court appear to “get it” in terms of the need for review and are already taking steps in the right direction. Richard Clements has already ably written on the ICC’s “internal progress narrative” in which it presents its own history as a “move from inefficient bureaucracy in the early days to efficient and well-managed organization today”. My reflections here are intended more as a snapshot impression of the present moment, however, rather than an assessment of the ICC’s culture of managerialism over the longer duration. Read the rest of this entry…

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The International Criminal Court Independent Expert Review: reforming the Court: Part II

Published on February 7, 2020        Author: 

 

Editor’s note: This post is Part II of a three-part series. Read Part I here.

In part one of this series of posts, I outlined the background to the 18th International Criminal Court Assembly of State Parties (ASP) adopting a resolution establishing an Independent Expert Review (IER) of the Court to begin work – and report – in 2020.* This brief post will examine the mechanics of that review process and consider some of the early criticisms made of it.

It bears repeating that, as many State Parties said in the ASP general debate, reviewing and strengthening the Court is a process, not an event. (A development I find encouraging, given my earlier scepticism of reform-by-expert-inquiry alone.) The IER will occur in parallel with an ongoing dialogue between the ASP and the Court, and the Court’s own internal efforts to reform and strengthen its processes. Critically, there now appears wider acceptance that while it is independent the Court must also be accountable. Indeed, probably the most effective accountability mechanism the ASP can bring to bear is simply scrutiny. In an ideal world, the other organs of the Court would look to effective internal reform in order to anticipate or limit ASP-initiated reform. The extent to which this is already happening is considered in the next, third, post in this series.

The structure of the IER and its mandate

A concern I had about the IER at the outset is its short timeframe (para 25). It is to commence work on 1 January 2020 and report in September. February and March are given over to “[c]onsultations with States Parties, Court officials, and civil society” and an interim report is scheduled for June-July. By the standards of the international system (or the Court) this is blisteringly fast. However, a longer timeframe may introduce its own problems. Aligning the availability of experts to serve on the IER becomes more complex the longer its mandate. Further, in terms of the animating force behind the IER, the terms of the present members of the ASP Bureau (the presidency or executive committee of the ASP) expire in December 2020. Finally, my concerns are fewer once the IER is understood as part of a larger review project not an end in itself.

In terms of structure, the IER resolution appoints three experts to each of three “clusters” (nine experts in total), each cluster dedicated to examining a set of issues: Read the rest of this entry…

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The International Criminal Court Independent Expert Review: reforming the Court: Part I

Published on February 7, 2020        Author: 

 

Editor’s note: This post is Part I of a three-part series.

I was fortunate enough to attend the 18th International Criminal Court Assembly of State Parties (ASP) in The Hague for four days from 2-5 December.* A number of themes were apparent in the general debate as well as other panel discussions in plenary. External political challenges to the Court were widely noted (and in especially dramatic terms by the President of the Court). There was an obvious and high degree of consensus around the (successful) Swiss amendments on intentional starvation as a war crime in non-international armed conflict, the importance of the Court maintaining a focus on sexual and gender-based violence, the need to achieve greater equitable geographic representation and gender balance across the Court’s staff, and the importance of strengthening the process for the election of judges and the next Prosecutor. A significant resolution on the nomination and election of judges was passed which introduces recorded public roundtable discussions with judicial candidates, open to State parties and other stakeholders. There was also a call from Vanuatu to acknowledge the climate change crisis and add ecocide to the Rome Statute and a sobering moment as South Africa noted it was still contemplating withdrawal. The African Union and Kenya maintained their positions on head of state immunity from international criminal proceedings.

Important as these issues were, however, the dominant theme was plainly that of review and strengthening of the Court, which ASP President O-Gon Kwon noted had been a focus of media and academic interest. It was certainly taken up by State parties. Other than 20 statements made in the plenary session on review of the Court, the idea of the review was widely supported in the general debate (see for example statements by: Finland on behalf of the EU, Denmark, Zambia, Malawi, France, the UK, Luxembourg, Uruguay, South Korea, Mexico, Australia, Poland, Peru, New Zealand, Spain, Romania, Malta, Canada, Ghana, Chile, and Argentina among others). Unsurprisingly, the ASP adopted a resolution empowering nine independent experts to conduct an external review of the Court’s functioning in 2020.

Before examining the independent external review (IER) process in part two of these series of posts, I would like to try to capture some of the context and atmospherics around the idea of the IER. Read the rest of this entry…

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Destination: the Wasteland of Academic Overproduction (Part 2)

Published on February 3, 2020        Author: 

 

In the first part of this essay, I have argued that the space available for innovative and imaginative thinking about international law hinges on the format of our research output. I have particularly shared my feeling that, notwithstanding the current veneration of the field for publications in refereed journals, our most innovative and imaginative pieces of scholarship are likely to be found in book chapters. I have described such phenomenon as a one of self-censorship and explained it through the metaphor of the virtual peer-reviewer which authors subject themselves to when writing a piece destined for a refereed journal. Such self-censorship is arguably witnessed with much less intensity in the writing of book chapters thanks to the personification and collegiality of the quality-control process commonly practiced for edited collections. In the second part of this essay, I am considering three concrete actions that possibly allow us to mitigate the repression by the virtual peer-reviewer while giving more visibility to those platforms that nest our most innovative and imaginative works. On this occasion, it will be argued that facilitating the production of more imaginative and innovative scholarship helps reduce academic waste.

Read the rest of this entry…

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Destination: the Wasteland of Academic Overproduction (Part 1)

Published on February 3, 2020        Author: 

 

We, international lawyers, publish too much, way too much. We know it too well and yet continue to produce scholarship by the truckload. We carry on with writing even if it comes at the expense of the breadth of our reading or the quality of our teaching. We persist to write, quite sadly I must say, even if it ruins our days, our nights, our family, our health as well as the environment. We even feel depressed and complain to our dean when the many other duties of 21st century academic life obstruct our writing. What is even more remarkable is that we remain committed to the frenetic production of scholarship although we are well aware that most of our works end up dying unnoticed in the wasteland of academic overproduction.

Anyone in the field is familiar with this dismal state of affairs. It would be of no avail to dwell upon the foregoing and lament one more time academic overproduction and its externalities – of which I am complicit like so many of us. Instead, in this essay, I would like to think it is possible to make the wasteland of academic overproduction in international law a bit less of a scandal. More specifically, I would like to believe that, in the wasteland of academic overproduction, there are more than just truckloads of academic works that should never have been produced. I would also like to suggest concrete ways to make our works more innovative and imaginative with a view to reducing the amount of academic waste produced by international lawyers. 

In the first part of this essay (Part 1), I will show how the format of our research output determines the space available for innovative and imaginative thinking. On this occasion, I will make the – possibly polemical – argument that edited collections are more likely to nest innovative and imaginative pieces of work than refereed journals. In the second part of this essay (Part 2), I will suggest some concrete actions to maximize innovative and imaginative scholarship, thereby possibly reducing the amount our works that end up in the wasteland of academic overproduction.

Read the rest of this entry…

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Brexit

Published on January 31, 2020        Author: 

 

This, I think, is worth reposting tonight:

I’ve seen you change the water into wine
I’ve seen you change it back to water, too
I sit at your table every night
I try but I just don’t get high with you
I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine

Ah, they’re dancing in the street—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me


I haven’t said a word since you been gone
That any liar couldn’t say as well
I just can’t believe the static coming on
You were my ground, my safe and sound
You were my aerial

Ah, the fields are crying out—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me

I heard the snake was baffled by his sin
He shed his scales to find the snake within
But born again is born without a skin
The poison enters into everything

And I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine.

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Filed under: Brexit, EJIL Analysis
 

Intergenerational Reflections on International Law: An Essay from Pierre Marie Dupuy

Published on January 31, 2020        Author: 

 

The international legal system established in 1945 can be seen, in its very design, as an incarnation of western rationalism.  Like that rationalism, it implicitly embodies a certain ideology of progress. In terms of its philosophical underpinnings, it would seem to be heir to the philosophy of the Enlightenment and the Aufkärung despite the fact that a number of its most influential advocates came from countries closer to Anglo-Saxon utilitarianism than to Kantian constitutionalism. This immediately poses a question therefore: could this set of norms claim in the long term to be truly universal in scope ?

Despite the ideological neutrality traditionally professed by the proponents of legal positivism, contemporary international law is founded on a particular western tradition. That tradition is itself based on the belief that subordinating the conduct of States to a common law of nations, recognised by all as valid and legitimate, will progressively bring about a gradual move away from if not ultimately a renunciation of any recourse to force.  Kant seems to be its most inspired prophet in that regard, in particular in his essay Perpetual Peace which seeks precisely to lay the foundations of a true legal cosmopolitanism, propounded in the name of all peoples. Kant remains moreover one of the crucial inspirations behind a shift away from metaphysics, in particular in terms of his philosophy of knowledge. Nevertheless, the project for perpetual peace he inspires, itself has a prophetic dimension found again in the Charter of the United Nations: that instrument, proclaimed in the name of “the peoples of the United Nations determined to save succeeding generations from the scourge of war … and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …,” presents itself as a Promise.  It is an ideal purpose assigned to the community of peoples, implicitly founded on the sediments laid down in the collective conscience by a particular tradition, one which is primarily Christian but also discernible in other monotheistic systems.

At the same time, the text adopted in San Francisco in 1945 took the risk of claiming to be valid here and now, that is to say, from entry into force of the law which the Charter of the United Nations represents, ideally affirmed as a universal constitution in the Kantian sense updated in that regard by Habermas. There is therefore in any event a tension and a temporal contradiction between the law and the promise or, to put it another way, between the time needed to bring the project to fruition and the immediacy it claims.

The rationale behind this wish not to stop but to stabilise history by subjecting it permanently to the reign of reason has much to do with the horror, albeit in the beginning partly underestimated, of the Holocaust. Never again! We cannot go backwards without the risk that the unthinkable which nevertheless came true will happen again. This Promise is therefore also founded on a turning back, turning back Barbarism, which the Second World War had just shown could reach previously unparalleled dimensions, even in one of the countries which had contributed most to western humanist philosophy.

A “directional predication”, to borrow an expression from Alain Badiou, the Charter not only announced a new era but affirmed a rupture, a new departure in the history of peoples and their States at the same time as it enshrined a universal dimension of the human person (prefiguring the emergence of humanity as a subject of international law, which appeared gradually from the 1970s). It is in that aspect that we must look for its constructive value which would lead Habermas to conclude that it is constitutional, a term admissible in particular admissible when used metaphorically.

There were many who from the outset have thought that the project enshrined in the Charter was merely an unattainable ideal. Nevertheless, in the first decades, the myth of progress applied to the law if not always to international relations could more or less give the impression that it was working. Admittedly, the Cold War brought back tensions, but at the same time it kept out of direct conflicts, at least among the permanent members of the Security Council. The Security Council, it must be said, remained paralysed for most of its life, but it was in certain, especially normative, respects, beneficially replaced by the dramatic rise of the General Assembly taken as a World Forum, at least until the mid-1980s. The “outlawry of war” movement  had crumbled, but official recognition by all parties of the fundamental legitimacy of the principle of the renunciation of force in international relations, enshrined in Article 2.4 of the Charter, nevertheless remained in place. The right of the “international community as a whole” took over from claims for the “right to development”, the new incarnation of the right of peoples. There was a growing impression, then, at least after the Cuban missile crisis (1963), that albeit not ruling out all danger of war, the Charter, supplemented by the United Nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), gave all parties a renewed basis for “peaceful coexistence” and even more “cardinal” and “intransgressible” principles, as the International Court of Justice would call them in 1986 and ten years later.

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part II

Published on January 30, 2020        Author: 

 

In my previous post, I argued that contrary to the view of the GOI, a Palestinian state has existed since 1919, and a Palestinian government was established – even if momentarily – in the territories occupied by the armed forces of Egypt and Jordan during the 1948 war following the termination of the mandate. This was known as the All-Palestine Government (APG). Although Jordan was opposed to the leadership of this government, it was recognised by all the other members of the Arab League. Jordan also recognised the sovereignty of the Palestinians living in the areas under its control in 1948-1949 when it sought their consent to the merger with Transjordan. The Act of Union was adopted by a parliament comprised of twenty Jordanian representatives and twenty Palestinian representatives following an election held in both territories. The Act recognised the separate identity of Palestine and the right of the Palestinian people to self-determination.

In addition, I explained that the UN Partition Plan provided for the establishment of an Arab state and a Jewish state with a special status for Jerusalem. This resolution has never been abandoned by the international community but has been repeatedly affirmed for more than seventy years. In the second part of this post, I criticise the argument in the GOI memorandum that recognition cannot be constitutive of statehood, that sovereignty over the West Bank and Gaza is in abeyance, and that the Palestinian state does not meet the criteria for statehood in international law.  Read the rest of this entry…

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