The publications listed here represent a small selection of the work of GCILS staff members. To see full listings of publications please click through to the University of Glasgow main webpages in each individual staff member profile.
A coherence framework for fact-finding before the International Court of Justice
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It is the task of the International Court of Justice to establish the operative facts from which to draw normative conclusions in all contentious cases that come before it. This task, however, is complicated where those facts necessitate engagement with specialized epistemic fields other than law such as science. Drawing on legal theory and epistemology I propose a coherence framework for the establishment of the facts in such cases. In essence, this means that the Court need not show that its factual determinations have been established beyond all doubt, nor even that they satisfy a certain standard of probability. Rather, what the Court must show is that a factual determination it has made has been arrived at through a rational process and that it is coherent. The coherence framework also has both descriptive and normative value as it both maps neatly on to the current (best) practice of the Court and provides a justification for why it should operate this way in the future.
The role of science and expert evidence in the ICJ’s Silala judgment: how Bolivia’s incoherent claims ran up against reality
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The International Court of Justice (ICJ)’s 2022 Silala judgment is surely one of the most curious that the Court has ever handed down. The judgment represents perhaps the first time ever that the Court has decided that the claims of one of the parties, in this case Bolivia, had changed so much over the course of proceedings that ultimately all but one claim and one counter-claim were without object. Leaving aside this curious fact, in this short piece I would like to focus on the role of science and expert evidence in bringing about this curious conclusion of proceedings. After some preliminary thoughts which situate my analysis of the Silala dispute (section 2), in I will map out how Bolivia’s claims changed over time and speculate as to the role that experts played in this evolution (section 3). I am going to suggest that Bolivia’s retreat from its original position was precipitated by expert evidence which showed that it would not be able to demonstrate that its factual claims were ‘sufficiently well-founded’ to meet the Court’s standard of proof. I am also going to suggest that the role of expert evidence in forcing Bolivia to alter its claims can most helpfully be explained in terms of factual coherence (section 4). I will finish with some more general reflections, including the suggestion that this case contains a broader lesson, one that has implications beyond this particular dispute. This is that while parties are free to make whichever factual claims they (or perhaps more accurately their governments) wish to, only coherent claims have any chance of meeting the Court’s standard of proof, and ultimately of persuading the Court to rule in that party’s favour.
Humanitarianism and Affect-Based Education: Emotional Experiences at the Jean-Pictet Competition
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For international lawyers seeking to promote compliance with international humanitarian law (IHL), some level of affective awareness is essential – but just where one might cultivate an understanding of emotions, and at which juncture of one's career, remains a mystery. This article proposes that what the IHL lawyers and advocates of the future need is an affect-based education. More than a simple mastery of a technical set of emotional intelligence skills, what we are interested in here is the refinement of a disposition or sensibility – a way of engaging with the world, with IHL, and with humanitarianism. In this article, we consider the potential for the Jean-Pictet Competition to provide this education. Drawing on our observations of the competition and a survey with 231 former participants, the discussion examines the legal and affective dimensions of the competition, identifies the precise moments of the competition in which emotional processes take place, and probes the role of emotions in role-plays and simulations. Presenting the Jean-Pictet Competition as a form of interaction ritual, we propose that high “emotional energy” promotes a humanitarian sensibility; indeed, participant interactions have the potential to re-constitute the very concept of humanitarianism. We ultimately argue that a more conscious engagement with emotions at competitions like Pictet has the potential to strengthen IHL training, to further IHL compliance and the development of IHL rules, and to enhance legal education more generally.
International Investment Law and General International Law: Radiating Effects?
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Edited by Christian J. Tams, Professor of International Law, University of Glasgow, UK, Stephan W. Schill, Professor of International and Economic Law and Governance, University of Amsterdam, the Netherlands and Rainer Hofmann, Professor of Public Law, Public International Law and European Law, University of Frankfurt, Germany. This book questions whether investment law influences the wider field of general international law, and more specifically, whether approaches adopted by tribunals in investment arbitrations have radiated, or should radiate, into other fields of international law.
Read the room: legal and emotional literacy in frontline humanitarian negotiations
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This chapter engages with law and emotions in frontline humanitarian negotiations with armed groups, illustrating how international humanitarian law (IHL) functions in the hands of different actors. Drawing on fieldwork from the Central African Republic and Southeast Asia, as well as practitioner-oriented negotiations literature, the chapter explores the legal and emotional literacy of humanitarian negotiators. Showcasing (and critiquing) the objective/subjective divide that pervades the literature, the discussion takes law and emotions in turn. The first part establishes that law is treated mainly as a tool, yet few clues are given as to how and why law might be deployed. A tension also materialises around whether IHL is itself ‘negotiable’, leaving humanitarian negotiators to navigate this conundrum—and law’s indeterminacy more generally—with little guidance. The second part demonstrates that emotions are overlooked and misunderstood in the literature. Emotions are presented as reason’s opposite, making it easy to side-line them and to call for their suppression. The thin and largely ambivalent treatment of emotions is of little help to humanitarian negotiators who, in practice, must contend with emotions at every turn. The central claim advanced is that, even as the legal and affective dimensions of humanitarian negotiations remain undertheorised, a heavy burden is imposed on humanitarians to discern what each negotiation encounter demands of law and of human feelings. This matters for IHL and it also has material consequences: those humanitarian negotiators who are unable to ‘read the room’ may find their attempts to persuade armed groups thwarted.
In: Krieger, H., Kalmanovitz, P., Lieblich, E. and Mignot-Mahdavi, R. (eds.) Yearbook of International Humanitarian Law, Volume 24 (2021). T.M.C. Asser Press: The Hague, pp. 103-139
The UN General Assembly as a security actor: appraising the investigative mechanism for Syria
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This article analyses the role of the United Nations General Assembly (UNGA) as a security actor. With the creation of the ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (IIIM), through UNGA Resolution 71/ 2481 in 2016, the General Assembly creatively used its powers to strengthen international criminal justice. Although investigative or fact-finding missions itself are nothing new to the UN system, Resolution 71/ 248 is qualitatively different to any other mission before it. The IIIM was established without Syrian consent, which is a historic first for the General Assembly. It is also the first time that such a body is tasked with investigations that fulfil prosecution standards, that serves as an evidence repository as well as a connecting hub between different justice actors. The UN General Assembly filled a void where the UN Security Council found itself in a stalemate over Syria. The IIIM has since served as a blueprint for a new generation of investigative mechanisms that emerged in the UN system. Looking beyond the appraisal of the IIIM, the article argues that the UN General Assembly practice in maintaining peace and security has significantly evolved over time. The early UN General Assembly practice through Uniting for Peace allowed it to assert its proactive role in parallel to the Security Council, yet it failed in its claim of authority to recommend forceful, collective measures. The practice subsequently evolved towards the diverse use of non-forceful measures, of which the IIIM provides a recent example. Creative boundary pushing in the UNGA through non-forcible measures will hopefully contribute to peace and security beyond war.
