Transnational Legal Theory
The latest issue of Transnational Legal Theory (Vol. 5, no. 3, 2014) is out. Contents include:
• Zoran Oklopcic, Provincialising Constitutional Pluralism
• Kevin B Sobel-Read, Global Value Chains: A Framework for Analysis
• 10 Years Equator Principles: A Transdisciplinary Inquiry
o Isabel Feichtner & Manuel Wörsdörfer, Introduction
o Suellen Lazarus, The Equator Principles at Ten Years
o Annegret Flohr, A Complaint Mechanism for the Equator Principles—And Why Equator Members Should Urgently Want It
o Manuel Wörsdörfer, ‘Free, Prior, and Informed Consent’ and Inclusion: Nussbaum, Ostrom, Sen and the Equator Principles Framework
o Michael Riegner, The Equator Principles on Sustainable Finance Assessed from a Critical Development and Third World Perspective
Chalmers & Farrall: Securing the Rule of Law through UN Peace Operations
Shane Paul Chalmers (Australian National Univ.) & Jeremy Matam Farrall (Australian National Univ.) have posted Securing the Rule of Law through UN Peace Operations (Max Planck Yearbook of United Nations Law, forthcoming). Here’s the abstract:
In this article we examine how the tension between justice and force informs the efforts of the United Nations (UN) to promote the rule of law through its peace operations. We begin by showing how the UN’s discourse of ‘securing peace’ has three antagonistic propositions holding it together in a combustible way. The propositions are: first, peace contains the force of war; second, law contains the force of peace; and third, justice contains the force of law. With the antagonistic arrangement of these propositions in mind, we then show how the UN has developed two contrasting approaches to promoting the rule of law through its peace operations, which we describe as its ‘aspirational’ and ‘operational’ visions of the rule of law. The aspirational vision combines the need for an effective and accountable security sector with a focus on the substantive requirements of justice, thus aspiring to bring all three propositions together in the rule of law. By contrast, the UN’s operational vision prioritises security, stability and order. The result is a divergence in the UN’s operationalization of the rule of law from its aspirational vision, in a way that emphasises the first two propositions in the interests of security, yet loses sight of the third proposition and thus of justice. We demonstrate this divergence through a study of the UN’s peace operations in Liberia between 1993 and 2014, focusing on the last decade of the UN Mission in Liberia. Our argument, as the case of Liberia shows, is that the UN’s efforts to promote the rule of law through its peace operations risk establishing the conditions for a state of tyranny if they lose sight of the antagonistic but co-dependent relationship between justice and force. The challenge is to prioritise the requirements of force and justice at the same time. While this will not resolve their antagonistic relation, it has the virtue of acknowledging their co-dependency as an uncomfortable yet unavoidable condition of a state based on the rule of law.
Benedek, De Feyter, Kettemann, & Voigt: The Common Interest in International Law
Wolfgang Benedek, Koen De Feyter, Matthias C. Kettemann, & Christina Voigt have published The Common Interest in International Law (Intersentia 2014). The table of contents is here. Here’s the abstract:
What lies in the common interest of the international community? How are those common interests protected? What is the role of states and of the international community? The Common Interest in International Law provides answers to these key questions that international law is faced with in times of globalization, humanization and climate change.
This book looks at the protection of common interests and shows how international law is progressively moving away from a system based on territorial sovereignty to a system based on shared responsibilities among states and other actors. The areas covered range from human rights law, international environmental law and international security law to international economic law and international litigation.
The editors’ objective is to investigate whether and how international law which historically is state-centric and consensual can protect common interests of humanity, when such common interests can only be safeguarded with the commitment and cooperation of all state and non-state actors. The issue of collective interests is subject to numerous current discourses in international law. This volume attempts to tie these together to a new – or renewed – understanding of ‘common interest’ reflective of contemporary challenges in international law. The concept of ‘common interest’ suggests that more is at stake in international law than the individual self-interests of states. Such notion might hold the key to transforming international law away from the dominance of sovereignty into a system which truly serves the interest of the “community”, including all relevant actors.
Schreurer: Jurisdiction and Applicable Law in Investment Treaty Arbitration
Christoph Schreuer (Univ. of Vienna – Law) has posted Jurisdiction and Applicable Law in Investment Treaty Arbitration (McGill Journal of Dispute Resolution, Vol. 1, No. 1, pp. 1-25, 2014). Here’s the abstract:
This article first discusses the law governing a tribunal’s jurisdiction. Jurisdiction is governed primarily by the instrument(s) bestowing jurisdiction. In the case of treaty arbitration, this will be the treaty offering consent to arbitration. On certain points, like the legality of the investment and the investor’s nationality, that treaty will refer to domestic law. A second part deals with the varying scope of jurisdiction exercised by investment treaty tribunals. It ranges from a wide jurisdiction over all disputes arising from investments to jurisdiction only over certain narrowly defined disputes. There is no clear correlation between these jurisdictional clauses and provisions on applicable law in the relevant treaties. A third part looks at situations in which the tribunal’s jurisdiction and the applicable law derive from different sources. This is the case, in particular, where the tribunal applies substantive standards that existed before the entry into force of the treaty providing for jurisdiction.