LCIL International Law Centre Podcast

The Hersch Lauterpacht Memorial Lecture is an annual three-part lecture series given in Cambridge to commemorate the unique contribution to the development of international law of Sir Hersch Lauterpacht. These lectures are given annually by a person of eminence in the field of international law. This year's lecture was given by Prof Beth Simmons, University of Pennsylvania.Summary: The Golden Age of globalization has reached an end in the popular and political imagination. In its place has arisen growing anxiety about state borders. What is the evidence of such a shift? What are the causes and consequences? What answers does international law have for how international borders should be governed, especially as human mobility intensifies? Traditional international law defining and settling borders will not suffice to answer these questions. Instead, the lectures explore a different approach that views international borders as institutions that obligate states to manage the tensions that territorial governance implies in an interdependent world.6 pm Tuesday 12 March 2024Lecture I: Setting the stage: Border Anxiety in an Interdependent WorldEven as interstate territorial aggrandizement has waned over the decades, border anxiety around the world is on the rise. A rich array of physical and rhetorical evidence from satellite imagery to discourse analysis supports this point. International borders have become a flashpoint for political demands and policies that insist on unilateralism. Yet “sovereign borders” misconstrue the very purposes – and consequences – of bordering. Can an International Law of borders move from its traditional focus on border fixity to border management? That will be the focus of Lecture 2.Chair: Sandesh Sivakumaran

Lecture summary: This lecture considers what Josef Kunz termed “swings of the pendulum” in international monetary and financial law and the formal and informal institutions in these related fields. International monetary law exploded in importance after the Second World War with the creation of the International Monetary Fund (IMF) and a global system of managed exchange rates. With the collapse of the Bretton Woods system in 1971 and a decline in capital controls, the IMF evolved from a dominant institution into a peer of central banks and private markets, providing surveillance of the “non-system” of floating exchange rates and assisting in responses to financial crises.By contrast, international financial law, which was of limited importance during the Bretton Woods era, has become a major soft law force in the global financial sector since the Basel Committee on Banking Supervision was created in 1974. The dichotomy between profit maximization and systemic risk at the core of global finance today is overseen and guided by the technocrats of the Basel Committee, the Financial Stability Board and other institutions of international financial law.Today, the pendulums of international monetary and financial law may be reversing again. Armed conflict, rising authoritarianism, growing fragmentation of the global financial system, and a revival of capital controls and other restrictions on capital flows could reinvigorate international monetary law and the IMF. This institution has reimagined itself multiple times already while staying true to its original mandate of safeguarding monetary stability.Michael Waibel is a professor of international law at the University of Vienna. His teaching and writing focus on international law, international economic law, sovereign debt and international dispute settlement. He received the Deák Prize of the American Society of International Law, the Book Prize of the European Society of International Law and a Leverhulme Prize for his research. He is Co-General Editor of the ICSID Reports (with Jorge Viñuales) and Co-Editor-in-Chief of the Journal of International Economic Law (with Kathleen Claussen and Sergio Puig).

Lecture summary: This paper looks at the political purchase of International Conflict Feminism (ICF) in helping constitute the normative framework guiding and legitimizing laws and policies advanced under the rubric of Countering Violent Extremism (CVE). It attends to how these have intersected with the work of the international criminal court (ICC) in new modalities of lawfare that have taken place against the backdrop of Security Council action, including its military interventions in Muslim majority countries. These intertwined projects – ICF, CVE and International Criminal Law – can be situated in the dominant structures of global governance that have rendered their driving logics the thinkable default option, and their legitimacy the dominant common sense for diverse groups, from feminist lawyers to military strategists. This analysis comes together in reading the Al Hassan case at the ICC as the grain of sand through which we examine the universe at the crossroads of sharia panic, sex panic and security panic.Vasuki Nesiah teaches human rights, legal and social theory at NYU Gallatin where she is also faculty director of the Gallatin Global Fellowship in Human Rights. She has published on the history and politics of human rights, humanitarianism, international criminal law, reparations, global feminisims, and decolonization. Nesiah was awarded the Jacob Javits Professorship (2022), Gallatin Distinguished Teacher Award in 2021 and the NYU Dr. Martin Luther King Jr. Faculty Award in 2020. Her current book projects include International Conflict Feminism (forthcoming from University of Pennsylvania Press) and Reading the Ruins: Colonialism, Slavery, and International Law. A founding member of Third World Approaches to International Law (TWAIL), she is also co-editing TWAIL: A Handbook with Anthony Anghie, Bhupinder Chimni, Michael Fakhri, and Karin Mickelson (forthcoming from Elgar).

Lecture summary: This research examines international law’s longstanding entanglement with communications infrastructure. There is increasing concern regarding the rise of private global power in the form of global digital platforms and their model of information capitalism. This paper responds by focusing on historical connections between international law and infrastructure as a means of examining their relationship in the global communications context. This reveals a longer trajectory to current interest in information capitalism’s effects on international life.Current concerns focus on the power of private digital platforms and the networked communicative infrastructure they maintain for the global economy. Introducing an historical perspective to such debates highlights infrastructure’s ongoing connections to violence and exploitation. This points to the wider and constitutive role of infrastructure in international life and underscores the need to address the blending of public and private forms of power in global governance.While the technologies driving change and re-appraisal within the contemporary international legal imagination are clearly distinct, viewing infrastructure as regulation in the current day requires us to confront continuing patterns of inequality and discrimination, which in turn can be connected with a longer international legal history. Such a focus can also help to explain how the traditional form of international law as a limited system of positive rules and of managerial ordering came to dominate the legal imagination and entrench a state-centrism which now appears anachronistic in light of the reality of private power and its concentration on the international plane.Dr Daniel Joyce is an Associate Professor at the Faculty of Law & Justice, UNSW Sydney. He specialises in international law, media law and human rights. Daniel is an Affiliated Research Fellow at the Erik Castrén Institute at the University of Helsinki, an Associate of the Australian Human Rights Institute and a member of the Allens Hub for Technology, Law & Innovation. His monograph Informed Publics, Media and International Law was published by Hart in 2020. He is a visiting fellow at LSE Law School from September 2023 until March 2024.

Lecture summary: In this talk, Lucas Lixinski examines the erasure of Indigenous perspectives from the literature on the turn to history in international law. Considering the turn to history’s promise to offer alternative imaginations by recovering history, it is somewhat surprising and disappointing that so much of this turn is narrated from the perspective of colonisers. Lixinski unpacks the implications of this turn to Indigenous agency and victimhood, and leverages alternative retellings of Indigenous peoples’ engagement with European international law that focus on Indigenous agency, diplomacy, and power. The talk fundamentally challenges what we take for granted in emancipatory international legal projects, and offers possibilities for rethinking how we do international legal history.Dr Lucas Lixinski is Professor at the Faculty of Law & Justice, UNSW Sydney. His research interests main centre on international human rights adjudication and international cultural heritage law, and sometimes international legal history especially in relation to rights. His latest monograph is Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice (Cambridge University Press, 2021), which he started developing while a visitor at the Lauterpacht Centre in 2018.

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.