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.
Swords, Shields and Other Beasts: The Role of Countermeasures in Investment Arbitration
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"Our topic can be thought of as a meeting of the old and the new, and it can be approached via a straightforward question: is there room, in the contemporary world of investment arbitration, for countermeasures, that traditional means of self-help? Countermeasures—and more so the concept’s traditional label, reprisals—evoke an era of interstate international law of limited reach: an era which, for lack of adequate institutions, accommodated ideas of ‘private justice’ to a significant extent, notably by accepting the right of one State to respond to another State’s wrongful conduct by means of coercion. This right permitted the State to respond to wrongful conduct affecting State rights as well as rights of nationals, despite the obvious risk of abuse. As investment lawyers with a measure of historical awareness know full well, in the field of foreign investment, the risk of abuse regularly materialised, as ‘home States’ (in the contemporary parlance) reacted coercively against host States accused of having interfered with rights of foreign investors. (...)"
The role of precedent in the jurisprudence of the International Court of Justice: a constructive interpretation
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In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future. This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.
International Investment Protection and Constitutional Law
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This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity. Contributions from leading experts in the field address how different systems of constitutional law interact with the investment treaty regime. Chapters provide a detailed overview of the various forms of interaction, and critically engage with the competing claims for supremacy that constitutional law and international investment law formulate. The book also addresses the reactions within the investment treaty regime to the demands formulated by constitutional law, in particular the use of constitutional analogies to understand international investment law and investor-state dispute settlement. Investigating the leading questions and issues surrounding this growing topic, this book will be an ideal read for students and scholars interested in financial, economic, and international law. Practitioners of constitutional law will also benefit from this innovative book.
Expanding Human Rights Obligations to Facilitate Climate Justice? A Note on Shortcomings and Risks
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Between facts and principles: jurisdiction in international human rights law
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In international human rights law ‘jurisdiction’ is the centre of the debate on extraterritorial obligations. The purpose of the present paper is to a) analyse how facts and principles contribute to the explanation of jurisdiction in international human rights law and b) to show how this analysis could help sharpen the debate in this area by making the grounds of disagreement between different accounts explicit. It first describes international practice regarding jurisdiction and shows that it is committed to jurisdiction being a principle that responds to facts on the ground. Second, the paper describes two academic views on jurisdiction in detail. Next, it introduces the framework on facts and principles developed by Jerry Cohen. The idea is that facts only support principles if their relevance is explained by another principle that does not depend on facts. Finally, section 4 combines the framework with our insights into jurisdiction. If jurisdiction is best understood as a principle that responds to facts, this implies that jurisdiction cannot be explained by facts alone. It must instead reflect principles that are themselves not fact-dependent. Adhering to this framework allows for better explanation of jurisdiction and a clearer understanding of the different views on jurisdiction.
UN Efforts to Make ISIS Accountable for International Crimes: the Challenges Posed by Iraq’s Domestic Law
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Following the military defeat of isis in Iraq in December 2017, it has become clear that a logical next step would be to hold members of isis accountable for crimes committed during the capture of a number of principal Iraqi cities between 2014–2017. The unsc, accordingly, decided to investigate isis crimes internationally by establishing unitad to document isis violations whilst leaving any proposed prosecutions to be conducted internally by Iraqi courts. The practical implementation of this hybrid international mechanism for prosecuting isis members has generated some legal challenges caused particularly by the national laws of Iraq. Some of these legal issues arise in relation to unitad’s subjective jurisdiction to collect evidence concerning isis terrorist acts that might amount to evidence of war crimes, genocide and crimes against humanity. Others arise in relation to whether unitad’s criminal investigation procedures align or conform with Iraq’s criminal procedure laws. This paper examines these challenges and will propose some appropriate solutions.
