The publications listed here represent a small selection of the work of staff members of the GCILS. To see full listings of publications please click through to the University of Glasgow main webpages in each individual staff member profile.

On The Contribution of Investment Arbitration to Issues of Evidence and Procedure Before Other International Courts and Tribunals

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“This chapter examines the contribution of investment arbitration to international dispute settlement more generally in relation to matters of evidence and procedure. Part 1 examines the practice of a number of inter-State dispute settlement fora in an attempt to gauge the contribution of the considerable body of practice of investment arbitration which has been built up over the course of the last few decades. It is shown that, at least at this point in time, this contribution is difficult to discern and appears to vary from one context to another.”

GCILS Working Papers

International Courts and Tribunals and Violent Conflict

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“This chapter examines international adjudication and arbitration, assessing the diverse roles of international courts and tribunals (ICaTs) in relation to violent conflicts. It shows that, over time, ICaTs have come to render decision upon decision, but – contrary to the expectations of early arbitration movements – hardly ever prevent ‘wars between nations’. Their mandates have been expanded, but typically only cover aspects of violent conflicts. While such aspects are today increasingly submitted to arbitration or adjudication, ‘conflict litigation’ remains controversial and challenges the authority of ICaTs. As the chapter demonstrates, the significance of arbitration and adjudication over questions of violent conflict has varied over time and forms part of the general history of international dispute resolution. Having surveyed this general history, the chapter sketches out the evolving legal framework governing courts and conflicts. It discusses which aspects of violent conflicts are addressed by ICaTs under contemporary international law and highlights current challenges of ‘conflict litigation’.”

GCILS Working Papers

Human Rights, Poverty and Capitalism

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“In this chapter, I examine the interplay between state obligations to eradicate extreme poverty and realize socio-economic rights under International Human Rights Law (IHRL) and some of the legal regimes and economic paradigms that sustain global capitalism. Advocates of rights-based solutions to poverty tend to focus on how mechanisms to advance relevant categories of human rights, above all socio-economic rights, can be strengthened. Their analyses typically ignore questions of how other legal rights and legal regimes may function as obstacles to the eradication of poverty and the realization of human rights. I contest the long-standing assumption of IHRL that the goal of realizing human rights—and socio-economic rights in particular—is compatible with the operations of global capitalism, and I seek to demonstrate that the legal regimes necessary to sustain capitalist political economy are, in fact, routinely productive of poverty and of violations of socio-economic rights.”

GCILS Working Papers

Global Constitutionalism and the International Criminal Court: A Relational View

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“International criminal law (ICL) poses distinctive challenges to the scholarly agenda of global constitutionalism. Descriptively, ICL qua criminal law implies a distinctive institutional process – the trial – that is largely unknown to constitutional processes. It is nonetheless via the trial and its assigned functions that global authority is exercised in the international criminal realm. Can global constitutionalism account for the role of the international criminal trial? Further, international criminal tribunals employ particularly coercive tools to perform its functions: it arrests suspected offenders (with the assistance of states), interrogates them, judges them, may convict and ultimately imprison them. Can global constitutionalism normatively account for this coercive aspect?.”

GCILS Working Papers

(Un)constitutional Change Rooted in Peace Agreements

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Peace agreements aiming to end intra-state armed conflicts have often provided for radical constitutional change, with more than 100 peace agreements concluded since 1989 containing provisions on constitutional reform. When such constitutional change is envisaged to take place within the framework of an existing constitution, as opposed to the making of a new constitution, hard-achieved deals between peace-making parties are exposed to ‘the unconstitutionality challenge’. Although there is ample literature on the making of a new constitution during transitions from conflict to peace, implementing a peace agreement within an existing constitutional framework and ‘the unconstitutionality challenge’ to peace reforms have not been fully examined to date. In this Article, we first identify the modalities in which ‘the unconstitutionality challenge’ is directed at constitutional change rooted in peace agreements. We do so through a comparative survey and by particular reference to peace processes in Colombia (with the FARC-EP) and the Philippines (regarding the Mindanao conflict). We then examine the promise and limitations of three legal strategies in addressing the unconstitutionality challenge: (i) recourse to international law in assessing unconstitutionality, (ii) transitionalism in judicial review, and (iii) attributing supra-constitutional or international legal status to peace agreements. We conclude that while each strategy has some merit, their effectiveness may be limited where they lack legal feasibility or political purchase. The resulting intractability of the unconstitutionality challenge, particularly in jurisdictions where there is a strong commitment to legalism, warrants a re-thinking of the link between peace-making and constitutional reform and the importance of taking existing constitutional frameworks in transitional countries seriously.

International Journal of Constitutional Law, 2020, Vol 18(4)

Tarik Olcay

Human Rights Unbound. A Theory of Extraterritoriality

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This book explores to what extent a state owes human rights obligations to individuals outside of its territory, when the conduct of that state impacts upon the lives of those individuals. It draws upon legal and political philosophy to develop a theory of extraterritoriality based on the nature of human rights, merging accounts of economic, social, and cultural rights with those of civil and political rights Lea Raible outlines four main arguments aimed at changing the way we think about the extraterritoriality of human rights. First, she argues that questions regarding extraterritoriality are really about justifying the allocation of human rights obligations to specific states. Second, the book shows that human rights as found in international human rights treaties are underpinned by the values of integrity and equality. Third, she shows that these same values justify the allocation of human rights obligations towards specific individuals to public institutions - including states - that hold political power over those individuals. And finally, the book demonstrates that title to territory is best captured by the value of stability, as opposed to integrity and equality. On this basis, Raible concludes that all standards in international human rights treaties that count as human rights require that a threshold of jurisdiction, understood as political power over individuals, is met. The book applies this theory of extraterritoriality to explain the obligations of states in a wide range of cases.

Oxford University Press; 11 June 2020 (estimated); available for pre-order

9780198863373