Go On! International Law: A Casualty in the ‘War of Terror’ at Cardozo School of Law

Go On! makes note of interesting conferences, lectures, and similar events.

►  The Benjamin N. Cardozo School of Law is hosting an event entitled International Law: A Casualty in the ‘War on Terror’? on June 18, 2018 at 6pm in New York. A reception is to follow. Professor Gabor Rona of Cardozo School of Law and Professor Marco Sassoli of the University of Geneva will hold a discussion of how international law related to national security fares in the Trump era. 

The event is free, but please register here in advance.

 

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The Rise of Investor-State Arbitration Book Launch at ICSID

Today, investor-state arbitration embodies the worst fears of those concerned about runaway globalization – a far cry from its framers’ intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor-state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system.

The corporations and law firms that dominate investor-state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment – there was no such evidence.

International officials with peacebuilding and development aims drove the rise of investor-state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book’s analysis illustrates how unintended consequences emerge and why institutions persist regardless.

Taylor St John is a Postdoctoral Research Fellow at PluriCourts, University of Oslo, and a Senior Research Associate at the Global Economic Governance Programme, University of Oxford. She will start as a Lecturer in International Relations at the University of St Andrews in Fall 2018. Her research focuses on the international architecture to resolve disputes between foreign investors and host states, and the politics of investment law and foreign investment more generally. She holds an MSc and D.Phil from the University of Oxford and a BA from the College of Idaho.

The Rise of Investor-State Arbitration: Online Book Launch at the ICSID Secretariat

 

Date: June 5, 11am-1pm (Eastern Standard Time)

 

Young ICSID is hosting a book launch for Taylor St John’s The Rise of Investor-State Arbitration. St John will present the book, then Antonio Parra, former Deputy Secretary General of ICSID, and Sudhanshu Roy, Foley Hoag, formerly of the Indian government, will provide comments on the book.

 

You are welcome to attend the event in person at the World Bank in Washington DC or participate online in real time. For more information, and to register to participate either in person or online, see: https://icsid.worldbank.org/en/Pages/Events.aspx?CID=181

 

If you would like to participate, please email the ICSID Secretariat at youngicsid@worldbank.org <mailto:youngicsid@worldbank.org> You are welcome to email questions for the speakers in advance.

 

For more information on The Rise of Investor-State Arbitration, see https://global.oup.com/academic/product/the-rise-of-investor-state-arbitration-9780198789918

Call for papers: Making international law work for women post-conflict- new voices

Transition from conflict to durable peace, defined as more than merely an absence of hostilities, is without the doubt a key priority for states emerging from conflicts and situations of gross human rights violations. International law plays a major part in this complex process. However, feminist international lawyers have argued that the discipline of international law has been largely developed by men and in ways which reflect male experiences, therefore legitimising women’s unequal position both in the context of international law as well as in national and international affairs.

Traditionally, international law focused on the position of women in wars exclusively from the perspective of international humanitarian law, emphasizing special protection afforded to women (predominantly as civilians) during armed conflict. However, in recent years, more attention has been paid to the applicability of international law to post-conflict situations, including women in the context of conflict prevention, transitional justice and post-conflict reconstruction. For instance, the landmark General Recommendation 30 (2013) of the CEDAW Committee confirmed that ‘protecting women’s human rights at all times, advancing substantive gender equality before, during and after conflict and ensuring that women’s diverse experiences are fully integrated into all peacebuilding, peacemaking, and reconstruction processes are important objectives of the Convention’. Furthermore, questions of gender dimensions of transitional periods, as well as matters concerning gender, peace and security have been at the forefront of academic as well as institutional debates concerning international law, women and post-conflict situations.

Nevertheless, current developments have been largely focused on issues of conflict-related sexual violence (CRSV) and prosecution of gender-based crimes largely to the exclusion of other branches of international law, such as international refugee law or international economic law, and their application to women & post-conflict situations.

For instance, issues such as gendered impact of post-conflict migration, the impact of post-conflict economic policies on women, provision of effective and gender-sensitive reparations and securing women’s socio-economic rights have been addressed to a much lesser extent than criminal accountability for CRSV.

This workshop seeks to bring together early career researchers to explore new perspectives on international law, women and post-conflict situations. It will address the multifaceted challenges facing women in post-conflict situations and to explore ways in which international law can (and should) be put to work in order to effectively assist women and secure their rights in the aftermath of contemporary conflicts. Contributions which explore the interdisciplinary perspectives on this theme as well as those which reach beyond the question of accountability for CRSV are particularly welcome.

The workshop will also present an opportunity for early career researchers to share their research with experts in the field of international law, women, peace and security.

Deadline: Titles and abstracts of no more than 300 words should be sent with a biography of no more than 100 words to Dr Olga Jurasz (il.newvoices@gmail.com) by 10am GMT on Monday 25 June 2018.

Participants will be asked to provide draft papers (4000 – 4500 words) in advance of the workshop.

Workshop: The workshop will be held on 26 and 27 November 2018 at Amnesty International, Human Rights Action Centre in London.

Eligibility: This is the workshop for early career researchers (max. 8 years from the award of a PhD or equivalent professional / research experience). Participation of early-career researchers from the Global South and conflict-affected countries is particularly welcome.

Funding: A limited number of travel & local accommodation grants are available for participants who are invited to present and would otherwise be unable to participate. Priority will be given to participants from the Global South and conflict-affected countries. If you wish to apply for a travel grant, please send the attached travel grant application together with your abstract. Please note that applications are considered on a case-by-case basis.

IL new voices – travel grant application

Outputs: Selected papers from the workshop will be published in an edited collection in 2019.

This workshop is supported by funding from the British Academy and from the Open University Citizenship & Governance Strategic Research Area.

IL New voices Workshop CFP

 

Oslo Migration Conference 2018

The University of Oslo Faculty of Law collaborated with the Peace Research Institute of Oslo to bring together a fascinating group of Migration scholars.  The conference began With a riveting keynote speech by Professor Maja Janmyr explaining the plight of refugee families from Syria who navigate a complex path resulting in vulnerability due the failure to attain recognition of rights on account of inability to gain documentation of protection status.  This was followed by a panel further exploring vulnerability and process; highlights included a paper by Tommaso Braida of Uppsala University, who explained the absurdity of the rules regarding detention and statelessness and a paper by Sarah A. Tobin (Christian Michelsen Institute) on the unfortunate consequences of banning Hawala among Syrian refugees.

The second panel, chaired by Professor May Len Skilbrei of Oslo,  tackled smuggling and trafficking and included an interesting paper by Emily Button Aguilar and Cecile Blouin of the Institute for Democracy and Human Rights of the Pontifical Catholic University of Peru on the trend demonstrating failure to protect foreign victims of trafficking within South America.  This was juxtaposed to Chistriano d’Orsi of the University of Johannesburg’s paper explaining the role of non-state actors in smuggling of migrants in Africa.

The third panel was organinzed by Professor Alla Pozdnakova ., chair of the International Law and Governance Research Group.  It showcased reserach on migration and Law of the Sea.  Peter Billings of the University of Queensland discussed “Operation Sovereign Order” and the push back of asylum seekers en route to Australia. He was followed by a Danish triad- Kristina Siig, Birgit Feldtmann, and Fenella Billing of Southern Denmark, Aalborg, and Aarhus who gave a fascinating overview of the clash between Law of the Sea rules and human rights in search and rescue operations near Libya, resulting in refoulement by merchant vessels, a ban of Medicins sans Frontiers in the SAR zone, and dilemmas in finding common solutions.

The fourth panel examined accountability issues.  Yi Chao of McGill argued in favor of placing financial penalties on refugee producing countries, leaving most the audience wondering how to hold proxy states, arms dealers and security companies accountable.  Marianne Nerland logically suggested that there is a need for an independent accountability mechanism to address NGO abuses in refugee camps.  Marie Aronsson Storrier and Susan Breau of Reading proposed the recognition of an obligation to record the names of the dead and missing in the Mediterranean, see the Last Rights Project.

Professor Cecilia M. Bailliet gave the second keynote, addressing the need for complementary standards to the Convention on the Elimination of Racial Discrimination to tackle the structural and systemic problems of racism and xenophobia affecting refugees and IDPs. She called for review of  national emergency legislation addressing immigration and terrorism for identification of discriminatory effect or implementation, as well as collection of best practices including progressive case law from regional and national courts.

Jørgen Carling of PRIO, gave the last Keynote in which discussed the precariousness of not including refugees within the broader group of migrants, as it results in denial of protection to other classes of migrants.  He was followed by a panel on precarity and agency in transnational lives.  Bhanu Prasad and Jyoti Bania of the Tata Institute in India presented their reserach on the plight of Muslim women migrants in the Gulf countries.  They were followed by a triad from Maastricht, Harres Yakubi, Vittorio Bruni, and Clara Alberola who analyzed how migrants are subject to corruption in transit.  Simon Yin of Hefei, China, described the integration difficulties faced by African migrants when migrating to Guangzhou.  Erlend Paasche of Oslo recounted his interviews with Nigerian Post graduates who chose to migrate in an irregular manner.

The sixth panel examined the abyss, marked by Daniel Agbiboa and Ann O. Afadam of Centre for Rights and Development, Nigeria, who told of the strategies taken by local communities to counter recruitment by Boko Haram.  Next,  James C. Simeon (of York U) presented a paper on jurisprudential trends regarding exclusion from asylum on the basis of complicity in terrorist crimes.  Jay Johnson of UCLA gave a thought-provoking overview of the mass closures of refugee reception centers in South Africa.

Combining legal theory and issues of practical implementation Nula Frei and Constantin (Tino) Hruschka examined the procedural dimension of the obligation to assess vulnerability in the Common European Asylum System (CEAS).

That session was followed by more optimistic presentations, chaired by Beth Lyon of Cornell Law School, including Jan-Niklas Sievers on the expansion of German University legal aid clinics for asylum seekers, Jonathan Weaver and Franceso Tonnarelli of UN Habitat on new strategies for Integrated Urban design as a durable solution, Jennifer Prestholdt of the Advocates for Human Rights, on the important lessons learned from the Liberian Truth and Reconciliation Commission Diaspora Project including the importance of giving refugees a right to participation, the opporunity to express themselves and tell their story, the right to be heard, and the right to have their sense of Identity recognized.  These are principles that should be upheld within the asylum processing system.  Rouyba Al-Salem of McGill ended the conference by calling upon Canada to improve civic education to Syrian refugees to improve integration.  The audience reflected on the difference between the situation now and the openness at the time of the Indo-Chinese exodus.  Everyone agreed that it was illuminating to engage in a multi-disciplinary forum and it is hoped that Cooperation will continue in the future!

Write On! Joint North American Conference on International Economic Law & ASIL Research Forum

This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at the Joint North American Conference on International Economic Law& ASIL Research Forum, as follows:

ASIL-Logo-JPG_0►The ASIL International Economic Law Interest Group, the Canadian Council on International Law, and The Centre For International Governance Innovation, together with McGill University Faculty Of Law are organising a Joint North American Conference on International Economic Law that incorporates the 2018 ASIL IEcLIG Biennial. It will be held at McGill University Faculty of Law, Montreal, Quebec, Canada, September 21-22, 2018. The conference theme is “Managing International Economic (Dis)Integration: Challenges and Opportunities.” Proposals should be sent to 2018naiel@gmail.com, and the submission deadline is Monday, June 4, 2018. The complete call for papers is available here.

►The American Society of International Law calls for submissions of paper proposals for the 2018 ASIL Research Forum to be held at ASIL Academic Partner UCLA School of Law in Los Angeles, California as part of the Society’s Midyear Meeting on November 8-10, 2018. Papers may be on any topic related to international and transnational law and should be unpublished. Submissions are due June 25, 2018.The complete call for papers is available here.

Should the system of investor-state dispute settlement (ISDS) be reformed?

Should the system of investor-state dispute settlement (ISDS) be reformed? That is the question being considered by the United Nations Commission on Trade Law (UNCITRAL).

ISDS provisions are contained in about 3,000 investment treaties and investment chapters of free trade agreements. The provisions permit a foreign investor in the form of a company or individual to bring a claim directly against a State where the investor believes that its investment is being threatened by an action of the State.Foreign-Direct-Investment

FDI and ISDS

FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure, particularly in developing countries. Investment agreements aim to create an enabling environment for foreign investors. Among other things, the provisions protect them against expropriation without adequate compensation and guarantee their ability to freely move assets in and out of the country. Sovereign States, on the other hand, need to govern with a multiplicity of interests in mind and their actions can, inadvertently or deliberately, deprive the foreign investor of an intended benefit. ISDS procedures provide the mechanism by which such disputes are resolved.

The most common procedures are drawn from the world of commercial arbitration, used to determine disputes between two commercial parties. They involve the use of an arbitral tribunal which gives equal standing to the investor and the State and whose decisions are binding.

The majority of developing countries rely on foreign direct investment to foster economic growth and development. The overwhelming majority of defendants in arbitral proceedings are the governments of developing and emerging economies. The outcome of ISDS arbitral tribunals can and do impact the ability of governments to develop and implement policy.

Concerns Regarding ISDS

A note by the UNCITRAL Secretariat – “Possible reform of investor-State dispute settlement” and the Report of its Working Group on ISDS summarize expressed concerns regarding ISDS. They include:

  • Inconsistency of arbitral decisions – instances where the host State is sued by different investors on the same issue but with different outcomes from different tribunals;
  • Lengthy duration and extensive cost of ISDS – States that have been sued may not have the resources to adequately defend its policies and actions or to pay arbitral awards;
  • Lack of transparency – States are using public funds and tribunal decisions may be sealed;
  • Lack of an early dismissal mechanism to address unfounded claims;
  • Lack of a mechanism to address counterclaims by respondent States;
  • Heavy reliance on arbitrators from the investor States and who may not understand policy.

Questions at the heart of these concerns address the overall legitimacy of the process. Should a system created to address disputes between two commercial parties be used to resolve policy issues that may impact millions of people? Is it acceptable to exclude domestic investors from the same recourse available to foreign investors?

Proponents of ISDS acknowledge the validity of some of these concerns and say they can be addressed by reforming the current system of ISDS. They also point to the underlying concerns that led to the use of ISDS in the first place – politicization from the use of diplomacy to address dispute and the slow judicial processes in some countries’ domestic legal system.

Concerns are not limited to those expressed by emerging economies. The EU’s submission to the UNCITRAL Working Group highlights systemic issues it believes warrants establishment of a multilateral investment court that would replace the use of arbitral tribunals. A March 2018 ruling of the European Court of Justice concluded that the ISDS clauses in an intra-EU investment treaty were incompatible with EU law.

The Trump Administration has also inserted its perspective on ISDS in the context of the NAFTA re-negotiations. The U.S. Government has consistently expressed its displeasure at being required to abide by the decisions of international panel decisions it finds not to its liking. In August 2017, the Trump Administration floated the idea of opting out of NAFTA ISDS provisions (Chapter 11). Should the US remove itself from the NAFTA ISDS provisions this would be a major departure in US policy and a disappointment for US corporations but a shot in the arm for opponents of ISDS.

Investment Facilitation

UNCITRAL will continue its deliberations. A growing consensus appears to be that while ISDS serves a role the system needs to be reformed. Meanwhile, in December 2017, 70 WTO members agreed to begin discussions to develop the framework for a Multilateral Investment Facilitation Agreement. Discussions will not address ISDS reform, but the purpose will be to minimize the likelihood of disputes by creating a more transparent, efficient, and predictable environment for facilitating cross-border investment.

To the extent that disputes arise because of tension between development-oriented policies of host States and investor goals, conflicts can best be minimized by incorporating a true development dimension into whatever frameworks are used to manage the FDI inflows into developing countries.

(Cross-posted from DevelopTradeLaw blog.)

Write On! The New York International Law Review (NYILR)- Call for Submissions

For over 30 years, the New York International Law Review has provided in-depth legal analysis on cutting-edge international law topics. In continuing this tradition, NYILR invites submissions for scholarly papers on international law via Scholastica. NYILR is co-published by St. John’s University School of Law and the New York State Bar Association.

For more information, please visit the St. John’s University School of Law website or the NYSBA website.

Follow @nyilr for updates.