LCIL International Law Centre Podcast

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).

Lecture Summary: The survival of our planet requires swift and targeted climate policies to adapt, mitigate and repair. Scientists and political elites acknowledge the urgency to reduce our reliance on coal and fossil fuels to achieve the necessary reduction in greenhouse gas emissions. Academics have been studying the impacts of investment treaty protections on climate action and argued that investment treaties raise the cost of climate action, financially and via regulatory chill and limit their ability to combat climate change. There also have been instances where investment treaties protected investors in the renewable energy sector leading to the argument that international investment law can support transition to renewable energy. This lecture will reflect on the compatibility of states’ existing investment treaty obligations with their climate obligations. It will consider the consequences of investment law’s distaste of local politics, stakeholder participation and public protest, which are essential to the realization of the right to a healthy environment, climate policy-making, and more broadly to democratic governance.Anil is a Senior Lecturer at Essex Law School and a co-director of the Essex Business and Human Rights Project. Her research interests are in the fields of international investment law and business and human rights. Her research bridges the gap between corporate law, international investment law, human rights law, and tort law, examining how these areas can and should interact to operationalise human rights standards in the modern business context. She has published works on parent-subsidiary relationships in the business and human rights context, non-financial reporting, duty of care in supply chain relationships, human rights in investment contracts and the embedded inequalities in the investment treaty regime. She is the author of The Nationality of Corporate Investors under International Investment Law (2020, Hart Publishing), a member of the IEL Collective’s steering committee and a member of Teaching Business and Human Rights Forum’s governance committee.

Lecture summary: United Nations (UN) and several UN Agencies have started to use behavioural sciences in order to achieve their policy goals, including for achieving the Sustainable Development Goals (SDG). While it is to be appreciated that insights on actual behavior inform policy making of international actors, they raise scientific and normative considerations warranting caution. First, for those considerations it matters, who the acting and the targeted actors are, that is, where and for what behavioral sciences are used (inter-state or targeting citizens). Behavioural interventions come in many facets and warrant a differentiated view – a finely built roadmap is thus desirable. Second, there are concerns about the internal and external validity of experimental research on which behavioural sciences largely, but not solely, draws. Third, taking a differentiated view on behavioral sciences also allows for a more finely grained view on normative concerns underlying the operations of the United Nations. This contribution spells out those considerations while still advocating for the approach as such.Reading material: https://www.uninnovation.network/assets/BeSci/UN_Behavioural_Science_Report_2021.pdfAnne van Aaken (Dr. iur. and MA Economics) is Alexander von Humboldt Professor for Law and Economics, Legal Theory, Public International Law and European Law and Director of the Institute of Law and Economics, University of Hamburg. She was Vice-President of the European Society of International Law and is Chair of the European University Institute Research Council. She is a general editor of Journal of International Dispute Settlement and a member of the editorial boards of AJIL, the Journal of International Economic Law, International Theory, and EJIL (until 2021). She was a guest professor in Europe, Africa, Asia, Latin America and the USA (Global Law Professor at NYU and Columbia). She has been expert consultant for the IBRD, UNCTAD, GIZ, OECD and the UN High Level Advisory Board of Effective Multilateralism. Her research focuses on international (economic) law, international governance, behavioral economics/psychology and international legal theory. She has published widely on those topics.

Lecture summary: It is alleged that the Vienna Convention on the Law of Treaties (VCLT) embodied the victory of Sir Gerald Fitzmaurice’s preference to interpret treaties based on the “ordinary meaning of the words” over Sir Hersh Lauterpacht’s view that one instead should seek to ascertain the treaty parties’ “actual intentions.” But is that so? If, as VCLT Article 31(1) provides, the focus is to be on “the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” and if that “ordinary meaning” is not, as per Article 32, “ambiguous,” “obscure,” “manifestly absurd or unreasonable,” then why should resort to “Supplementary Means of Interpretation” be appropriate at all “in order to confirm the meaning resulting from the application of article 31”? If, as many believe, the VCLT is hierarchical, shouldn’t interpretation be complete when an “ordinary meaning” is established that is “unambiguous,” not “obscure,” and “neither manifestly absurd or unreasonable”? Did those preferring to determine the treaty parties “actual intentions” in fact sneak into the VLCT’s text that provision for supplementary “confirmation” of a clear “ordinary meaning”? Is to that extent the VCLT in fact, as is said of treaties generally, “an agreement to disagree”? In reality, given the sequential submissions in international arbitrations, as well as before international courts and tribunals, each party, beginning with the Applicant’s or Claimant’s Memorial, followed by Respondent’s Counter-Memorial, the Reply Memorial etc., from the start places before the adjudicator all of its arguments under Section 3. of the VCLT (Articles 31-33).The fact that Article 31’s “General Rule Of Interpretation” and Article 32’s “Supplementary Means Of Interpretation” are presented to the adjudicator as a unit, and not seriatim, has resulted in some arbitral tribunals not treating those two articles of the VCLT as being hierarchical, and instead applying what has become known as the “crucible approach,” i.e., stirring the two in the pot of deliberations as though they were a regulatory potpourri rather than distinct rules, the later to be applied only if the first did not produce an unchallengable “ordinary meaning.” Thus separate approaches to the VCLT have arisen that have raised the question posed by former ICJ President Schwebel: “May Preparatory Work Be Used to Correct Rather Than Confirm the ‘Clear’ Meaning of a Treaty Provision?”Judge Charles N Brower’s career has been divided between private law practice, first with White & Case LLP in New York City and Washington, D.C., since 2001 as an Arbitrator Member of Twenty Essex Chambers in London, and public service, first with the Office of The Legal Adviser of the U.S. Department of State (1969-73)(successively as Assistant Legal Adviser for European Affairs, Deputy Legal Adviser and Acting Legal Adviser), as Judge of the Iran-United States Claims Tribunal (1983-present), as sub-Cabinet rank Deputy Special Counsellor to the President of the United States dealing with the Iran-Contra affair (1987), as Judge ad hoc of the Inter-American Court of Human Rights (1999-2002)(appointed by Bolivia), and the most -appointed of the only five Americans ever to be appointed Judge ad hoc of the International Court of Justice (2014-2022) (appointed by Colombia (1 case) and the United States (2 cases)).Judge Brower's book: 'Judging Iran: A Memoir of The Hague, The White House, and Life on the Front Line of International Justice' is available now to pre-order and will be released on 11 April 2023.

Lecture summary: After 1945, the United Nations – and international organizations (IOs) more generally – were widely embraced as the ideal, democratic means to resolve international conflicts and promote global welfare. Sharing this almost feverish enthusiasm, a Western-controlled International Court of Justice adopted a deferential attitude toward IOs. The law it developed exuded confidence in the impartiality of IOs, premised on an unquestioning assumption that their subjection to legal discipline and judicial review would be unnecessary and even counterproductive. I propose that the time has come to concede that the utopian premises upon which the international law relating to IOs is based are flawed and outline a new course for the international law on IOs, one that addresses the inherent flaws of collective decision-making and can assist IOs to achieve their stated goals.Professor Eyal Benvenisti is Samuel Rubin Visiting Professor of Law, Columbia Law School (2022). He is the Whewell Professor of International Law at the University of Cambridge, CC Ng Fellow in Law at Jesus College, and the Director of the Lauterpacht Centre for International Law. He is also a Visiting Professor at the Hebrew University of Jerusalem, and a member of the Global Visiting Faculty of New York University School of Law. He is Member of the Institut de droit international and of the Israeli Academy of Sciences and Humanities. A Co-Editor of the British Yearbook of International Law, he served on the Editorial Board of the American Journal of International Law (2009-18). He was Project Director of the “GlobalTrust – Sovereigns as Trustees of Humanity” research project, funded by an ERC Advanced Grant (2013-18). He previously was a Visiting Professor at the law schools at Harvard, Columbia, Michigan, Pennsylvania, Toronto and Yale. He gave special courses at The Hague Academy of International Law (2013) and the Xiamen Academy of International Law (2017). Benvenisti will deliver the General Course in International Law at The Hague Academy of International Law in 2024.

Lecture summary: It is widely recognised that there is a dearth of women judges sitting on international courts and tribunals. In this lecture, particular attention will be paid to the question of why the lack of judicial parity matters. It will be argued that the dearth of women judges is both symptom and cause of the highly gendered way in which international law and international institutions operate. The idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law will be called forth. The female judge, conversely, is presented as a disruptive force whose very presence serves to place gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, it will be concluded that an approach to judging that acknowledges and challenges structures of power – including gender – contains considerable transformative potential.Dr Loveday Hodson is Associate Professor at the University of Leicester.I joined Leicester Law School in 2004, since which time I have had a number of teaching and administrative roles. For the past few years I have taught on the International Law undergraduate module as well as convening the Feminist Perspectives on International Law and Legal Responses to Global Injustice postgraduate modules. During my time at Leicester I also contribute to the teaching of Constitutional and Administrative Law. I am currently the School's Deputy PRG Tutor (admissions) and Research Ethics Officer.

Lecture summary: The lecture will explore the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, it will be claimed that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL.Professor Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He was a member of the UN Human Rights Committee from 2013 to 2020 and served for one year during that time as Chair of the Committee. He serves, at present, as a senior research fellow at the Israel Democracy Institute, and as the head of the CyberLaw program of the Hebrew University CyberSecurity Research Center. He is also serving this years as the co-director of the Center for Transnational Legal Studies at King’s College, London.

A series of three lectures by Benedict Kingsbury, New York University. Vice Dean and Murry and Ida Becker Professor of Law Director, Institute for International Law and Justice Faculty Director, Guarini Institute for Global Legal Studies. Benedict Kingsbury’s broad, theoretically grounded approach to international law closely integrates work in legal theory, political theory, and history. His current research focuses on infrastructure; global data law; and vaccines issues.