LCIL International Law Centre Podcast

Lecture summary: After the conclusion of the United Nations Convention on the Law of the Sea and the entry into force of its Article 108, the subject of maritime crimes has experienced many important developments. Indeed, at present, States have to deal with criminal actions which did not exist in the classical International Law of the Sea. Relevant examples include kidnapping and hostage-taking at sea, maritime terrorism offences, the smuggling of migrants by sea, illicit oil and fuel illicit activities in the maritime domain and the maritime crime of illicit traffic in narcotic drugs and psychotropic substances by sea.The issue of jurisdiction to fight this type of maritime crimes may be complex, especially when the flag State does not respect its duties under the International Law of the Sea. Practice has shown that difficulties in acting can be particularly stormy when dealing with the fight against the maritime crime of illicit traffic in narcotic drugs and psychotropic substances by sea.In these terms, the starting point for a contemporary analysis of the issue of interdicting ships without nationality in relation to maritime crimes can be a question of a general nature: when fighting against illicit drug trafficking must the principle of the exclusive jurisdiction of the flag state really be considered untouchable?Professor Fernando Loureiro Bastos is Associate Professor of Public Law at the Faculty of Law, University of Lisbon. He is Head of the Research Group on International and European Law of the Lisbon Public Law Research Centre and President of the Portuguese Society of International Law (Portuguese Branch of the International Law Association) and a member of the ILA Committee on International Law and Sea Level Rise. He has served as Co-Agent and Counsel of the Republic of Guinea-Bissau, Case 19 – M/V “Virginia G”, ITLOS (2011-2014).Commentator: Dr Tor Krever, ‘Piracy as a maritime crime’.Chair: Mr Stratis Georgilas (G-H Law Chambers, Athens)

The LCIL and Cambridge International Law Journal (CILJ) are pleased to invite you to the LCIL-CILJ Annual LectureLecture summary: Recent pathbreaking trade agreements empower trade policymakers to target foreign companies in novel ways and to police corporate due diligence in global supply chains rather than seek to change foreign government behavior as used to be their purview. This repurposing of our trade enforcement system has the power to transform dramatically the global commercial system, the bargains it manages, the procedures applicable to it, and the rights and obligations of all involved.This research project maps the institutional ascent of this revealed practice, which it maintains was the product of disillusionment with the intellectual pedigrees of conventional trade law. The project evaluates our trade policing in light of the progressive aims policymakers have set for it, taking into account the many constituencies on whom the burdens fall unevenly. This excavation exposes how our trade police do not operate like other widely accepted forms of law enforcement or of international law bureaucracy. Tactics like those in the new arsenal bear close resemblance to the practices of authoritarian governments that seek to provoke acquiescence without process. The project’s assessment prescribes lessons for the several disciplines trade policing touches, including for the way scholars and lawmakers conceive of what bodies of law, tools, and actors are best suited to manage transnational corporate behavior and for concepts of compliance in international law. Finally, this project demonstrates that, as a corporate accountability system, trade policing has leapfrogged efforts by fields with similar aims like business and human rights, and the policing tools we have so far are just the tip of the iceberg.Kathleen Claussen is a leader in international economic law and procedure and has served as arbitrator, counsel, expert, public servant, and teacher. Her expertise covers several topics of international law, especially trade, investment, international business and labor; dispute settlement and international dispute bodies; national security and cybersecurity law; and, administrative law issues surrounding U.S. foreign relations and transnational agreements.Professor Claussen has served as a visiting faculty member or invited researcher at numerous institutions around the world, including Northwestern University Pritzker School of Law, the University of Cambridge Lauterpacht Centre for International Law where she was a Brandon Fellow, the Graduate Institute of International and Development Studies in Geneva, the iCourts Center of Excellence at the University of Copenhagen, the George C. Marshall Center for Security Studies, the University of Zurich and Collegium Helveticum, and the World Trade Institute. Prior to joining the Georgetown faculty in 2023, she was a member of the faculty at the University of Miami School of Law for five years.

Lecture summary: For better or for worse, the ‘English school’ or ‘British tradition’ of international law has eluded systematization or definition. The lecture pursues the argument that it is possible to identify clear synergies in the mainstream legal method of British international lawyers, focusing on British approaches to the doctrine of self-defence. It should not be surprising that this method follows in the common law tradition, displaying the tradition's three key hallmarks of (1) connection to social practice, (2) focus on courts and (3) an anti-theoretical tendency. Identity and analysis of these characteristics helps us to understand the distinctive contribution of British approaches to international law and the work this 'common law method' has done in strengthening and shaping international law. Identifying these characteristics is also important in order to understand the more problematic implications of their application in the international legal context. The common law method has consequences for the structure and direction of the international legal system, including the parameters of its community, the site of its authority and the role of theory in its development. Reflection on these strengths and weaknesses helps us better understand British contributions to international law. Paradoxically, the route to a more universal international law requires us first to understand the ways in which it is plural.Devika Hovell is an Associate Professor in Public International Law at the London School of Economics. She holds a doctorate from the University of Oxford, a Master of Laws from New York University and an Arts/Law degree from the University of Western Australia. She served as Associate to Justice Kenneth Hayne at the High Court of Australia, and as judicial clerk at the International Court of Justice in the Hague, before starting her academic career at the University of New South Wales. She joined the London School of Economics in 2012. She is author of The Power of Process (edited by Oxford University Press) and has published articles in a range of journals, including the American Journal of International Law, the European Journal of International Law, the Leiden Journal of International Law and the Modern Law Review. The article the subject of this lecture will be published in the centennial volume of the British Yearbook of International Law. She is on the Editorial Board of the European Journal of International Law and is one of four editors of the international law blog, EJIL Talk!.

Lecture summary: The Energy Charter Treaty was concluded in 1994 on the assumption that fossil fuels could continue to be used for the foreseeable future. This article examines how ECT contracting parties can now withdraw from this treaty for climate change reasons without being subject to its 'sunset' clause, which protects existing investments for 20 years. It evaluates several strategies, including amendment and inter se agreements, and withdrawal on the basis of a fundamental change of circumstances (rebus sic stantibus). That fundamental change is not climate change itself, which was foreseen in 1994. It is the fact that, as recently stated by the IPCC, fossil fuels now need urgently to be abandoned, resulting in significant stranded assets. This was then unforeseen and radically transforms the extent of the ECT’s obligation to continue to protect existing fossil fuel investments for another 20 years. The article finally considers the implications of such a withdrawal for remaining contracting parties under Article 70 VCLT.Dr Tibisay Morgandi is a Lecturer (Assistant Professor) in International Energy and Natural Resources Law at Queen Mary University of London, School of Law.Professor Lorand Bartels is Professor of International Law, University of Cambridge.

Lecture Summary: This lecture will discuss recent developments in the UN Climate Regime, focusing in particular on the mismatch between the increasing emphasis on temperature goals and target-setting under the Paris Agreement and its treatment of equity and fairness in delivering these goals and targets.Lavanya Rajamani is a Professor of International Environmental Law, Faculty of Law, University of Oxford, and Yamani Fellow in Public International Law, St Peter's College, Oxford. Lavanya writes, teaches and advises on international climate change law. She has been closely involved in the climate change negotiations in various capacities for two decades, including as advisor to Chairs, Presidencies, and the Secretariat. She was part of the core UNFCCC drafting and advisory group for the Paris Agreement. And a Coordinating Lead author for the Intergovernmental Panel on Climate Change's Sixth Assessment Report. She is also currently involved in providing the evidence base for ongoing climate change litigation in national, regional and international courts.

Lecture summary: Just over a year ago, the US Securities and Exchange Commission (SEC) sought public comments on a bold and thoughtfully framed rule proposal for the enhancement and standardization of climate-related disclosure. It was a move that signaled to many that the US was finally responding to the global shift amongst investors and asset managers toward the integration of ESG data into fundamental value analysis. Today, however, as ESG issues in the US have become politically polarized and as litigation challenges loom large, the possibility of meaningful change appears more remote.Now is therefore an ideal time to spotlight the new ESG disclosure requirements in the UK and EU and, against this backdrop, to refute the claim that ESG disclosure involves “major questions” that transcend the SEC’s longstanding and clear authority to impose new reporting requirements on publicly traded companies. The UK and EU experiences likewise provide valuable perspectives in connection with other hot-button issues in the US, including: closing the public-private disclosure gap, broadening the traditional concept of materiality, and imposing mandates that require real-time disclosure as opposed to disclosure primarily at periodic intervals.Donna M. Nagy is the C. Ben Dutton Professor of Law at Indiana University Maurer School of Law in Bloomington, Indiana, USA. She teaches and writes in the areas of securities litigation, securities regulation, and corporations, and has served for eight years as the law school’s Executive Associate Dean. Her scholarship includes two co-authored books, one on the law of insider trading and a casebook on Securities Litigation, Enforcement, and Compliance. She has published extensively in distinguished law journals on matters including insider trading and fiduciary principles; securities disclosure and environmental, social, and governance (ESG) information; government officials and financial conflicts of interest; and securities enforcement remedies. She is also a frequent speaker on securities regulation and litigation topics at law schools and professional conferences. Professor Nagy is a member of the American Law Institute and served as a member of the National Adjudicatory Council of the Financial Industry Regulatory Authority (FINRA) and as an appointed member to the ABA Corporate Laws Committee. She began her teaching career in 1994, and prior to that, was an associate with Debevoise & Plimpton in Washington, D.C. She earned her law degree in 1989 from New York University School of Law and her BA in Political Science in 1986 from Vassar College.

Lecture 2: 'Exploring Nexus'A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture 3: 'Reframing Doctrines'A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture 1: 'Mapping the Terrain'A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture summary: International economic law binds the state in relation to markets – most prominently with respect to cross-border trade in goods and services (trade) and the cross-border flow of capital (investment). The core tension to be managed in treaty design involves the balance between economic disciplines and the sovereign’s reserved regulatory authority – between liberalization and policy space. The trade regime has been fairly successful in striking this balance, while the investment regime has been less so. As a result, a natural tendency among reformers has been to look to trade for lessons and solutions to the challenges of investment treaties. This lecture considers why mechanisms that have worked in the former context have proven unworkable in the latter, and what that means for design going forward.Both the trade and investment regimes preserve policy space through a process of justification at the dispute settlement stage. Policy justification is built into most trade agreements (and some investment treaties) through formal exceptions clauses. Even in the absence of such clauses, exceptions-style justification has informally penetrated both regimes through adjudicative reasoning and borrowing. This "exceptions paradigm" of justification has worked well in trade treaties, where it has been especially key to securing a workable balance in the WTO/GATT context – in a coherent way, on which actors can plan ex ante. But, where tried, the exceptions paradigm has not worked out in the investment regime. I argue that the difference lies in the institutions within which trade and investment rules and exceptions are embedded. This lecture compares the trade and investment regimes across three institutional nodes: (1) the nature of the right of action (public vs private); (2) the degree of judicial centralization (court system vs ad hoc arbitration); and (3) the available remedies (prospective injunctive relief vs retrospective damages). I suggest that it is trade law's public-oriented institutions that have made the exceptions clause workable – not the other way around. By contrast, investment law's private-oriented institutions make that system particularly inhospitable to exceptions-style justification.Julian Arato is a professor of law at the University of Michigan Law School. His scholarly expertise spans the areas of public international law, international economic law, and private law. Arato serves as a member of the board of editors of the American Journal of International Law. He is active in the governance of the American Society of International Law, having recently served on the executive council and as co-chair of the international economic law interest group. He also serves as chair of the Academic Forum on Investor-State Dispute Settlement and as a member of the Institute for Transnational Arbitration Academic Council. Since 2018, Arato has served as an observer delegate to the United Nations Commission on International Trade Law Working Group III (ISDS Reform).