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.

EU general principles in external relations: shaping the EU as a global actor and dealing with its accountability

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The chapter assesses the role that selected general principles of EU law have played in shaping the legal framework for EU external action, strengthening the political and judicial accountability of the EU as a global actor. It investigates the extent to which the CJEU is in a position to employ general principles as a benchmark and interpretative aid in a field that is subject to a high degree of political discretion and to the dynamic development of global challenges. The chapter considers how the Court's limited jurisdiction within the EU's Common Foreign and Security Policy (CFSP) has affected judicial engagement with general principles protecting institutional prerogatives, on the one hand, and individuals' rights affected by the EU's external action, on the other hand. The chapter also attempts to delineate the systemic limits to the Court's capacity to contribute to the further development of general principles in the field of external relations. The chapter argues that the impact of the EU's general principles of conferral, sincere cooperation, effectiveness, institutional balance, and democracy has been similar to their role within the EU's internal legal sphere. They have provided the basis for the Court to delimit and ensure the lawful exercise of EU and Member State external competences, strengthened the EU's accountability towards individuals, and helped establishing the EU as a global actor in its own right. The chapter demonstrates that general principles have not only been employed by the CJEU as a benchmark and interpretative aid, but that also other EU institutions have recognised the constitutional significance of general principles as a guiding force in the context of international treaty-making and other external action.

Introduction to the symposium on incidental jurisdiction

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The doctrine of incidental jurisdiction has had significant bearing on some of the most important international legal disputes of recent times, challenging one of the truths that international lawyers hold to be self-evident: that the jurisdiction of international courts and tribunals is dependent on the consent of states. But what exactly is this doctrine and why does it deserve to be the focus of this symposium? The doctrine of incidental jurisdiction allows tribunals to bring within their jurisdiction “incidental” or “ancillary” issues that are crucial to answering the question over which the tribunal certainly does have jurisdiction. It is a useful device that in certain, limited situations allows international courts and tribunals to consider legal questions that are beyond the jurisdiction to which states formally consent.

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. (...)"

Eran Sthoeger

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.

Stephan W. Schill

Expanding Human Rights Obligations to Facilitate Climate Justice? A Note on Shortcomings and Risks

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