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.

Between Integration and the Rule of Law: on EU Law’s Culture of Lawful Messianism

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The present article seeks to identify the particular culture that undergirds the practice of EU law, by drawing from Paul Kahn’s Cultural Analysis of Law. It will do so by extracting from his work certain models for understanding the imaginative life of a political community, most importantly those of the rule of law and of political action, which in Kahn’s observation of American realities stand in competition to one another. This will lead us, first, to consider the particular place held by European integration, as a messianic project of collective transformation. While this might seem to structure the practice of EU law in a way that is consistent with Kahn’s description of political action, such a view, we will then submit, does not consider the particular place of law in the EU’s legal culture, as the very substance in which the European order appears incarnated, and which provides the impetus for much of its development. To account for these two dimensions in the political imaginary of the EU, it is argued that, unlike Kahn’s description of the American context, the rule of law and political action do not stand in tension with one another. Instead, the practice of EU law operates under an idiosyncratic frame of experience, which can be usefully associated to Robert Cover’s notion of “lawful messianism,” and which synthesizes key aspects of Kahn’s account of the rule of law and political action. Finally, to illustrate the operation of just that culture of lawful messianism and its persistence to this day, the article turns to the place of the rule of law as a “foundational value” of the European legal system and recent developments around this particular norm of EU law.

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.

Emiliano J. Buis

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.

Stephan W. Schill
Rainer Hofmann

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