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.

International Investment Protection in Deep Seabed Mining Beyond National Jurisdiction

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The deep seabed beyond national jurisdiction comprises almost three-quarters of the entire surface area of our oceans. It boasts an array of mineral resources, including valuable metals and rare earth elements. Acting under the United Nations Convention on the Law of the Sea, the International Seabed Authority is responsible for regulating this area and granting mining contracts to allow investors to explore for and exploit deep seabed minerals. As yet, deep seabed mining activities have been confined to the exploratory stage. However, recently, there has been a marked growth in deep seabed investment by private corporate actors. As technology advances and commercial appetite increases, extraction of deep seabed minerals may soon commence. In this context, this article seeks to address crucial legal issues facing pioneers of deep seabed mining. What is the extent of investment protection within the existing regime? And are there dispute resolution options to enforce such protection?

Journal of World Investment and Trade / Volume 19 / Issue 5-6 / pp. 890-929

Title to territory and jurisdiction in international human rights law: three models for a fraught relationship

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It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.

Leiden Journal of International Law, 31(2), pp. 315-334. (doi:10.1017/S0922156518000018)

The Legal Nature of the World Bank Safeguards

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Building on the Brunnée and Toope’s theory of interactional law and its use of Fuller’s criteria of legality, this paper argues that the World Bank safeguards, especially their reincarnation through the Environmental and Social Framework (ESF), is a source of law that is binding on all international legal subjects. The paper criticises categories such as ‘internal law’ and ‘soft law’ that are traditionally used to describe the status of non-treaty rules, arguing that such categories are theoretically opaque, thus leading to a ‘dead-end’ in the discussion about sources of normativity beyond the Article 38 of the ICJ statute. The core aim of this paper is to demonstrate that international legal obligations such as those created by the ESF can be understood in dynamic terms, and that we can only ascertain their legal nature by observing their impacts, operation and authoritativeness in practice.

VRÜ Verfassung und Recht in Übersee / Volume 51 / Issue 1 / 2018 / pp. 78-102

Imperium in Imperio: Sub-Imperialism and the Recognition of Australian Sovereignty in International Law

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This article retraces the role of sub-imperialism in the formation of the Australian state as a subject of international law. The discourse of sub-imperialism developed in the late nineteenth and early twentieth centuries as a means of characterising the British self-governing Dominions’ uncertain status in the international order, and drew explicitly on the United States Monroe Doctrine. The article revisits the significance of sub-imperialist posturing at two critical junctures in the historical formation of the Commonwealth of Australia. The first is the formalisation in the early 1880s of the movement toward federation of the Australasian colonies as a response to perceived British acquiescence to German imperialism in the Western Pacific. The second is the Commonwealth government’s attempt during the Versailles negotiations of 1919 to annex to its territory the occupied German Pacific territories of New Guinea and Nauru. The principal argument made in this article is that attempts to establish an Australian sub-empire in the Western Pacific were fundamental both to the federation movement and the recognition of Australian sovereignty in international law. The article concludes that Australian sub-imperialism warrants greater attention both in accounts of the history of Australia’s transition from self-governing Dominion to sovereign status in international law, and in accounts of contemporary Australian foreign policy in the Pacific region.

Melbourne Journal of International Law / Volume 19 / Issue 1 / pp. 335-368

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International Investment Law and History

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Historiographical approaches in international investment law scholarship are becoming ever more important. This insightful book combines perspectives from a range of expert international law scholars who explore ways in which using a broad variety of methods in historical research can lead to a better understanding of international investment law.

Stephan W. Schill
Rainer Hofmann

Discretion and the gravity of situations at the International Criminal Court

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This article offers a new perspective on the gravity notion in Article 17(1)(d) of the Statute. It demonstrates that it is impossible to determine gravity to ‘exacting legal requirements’, as the Pre-Trial Chamber in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia found. Instead, the Prosecutor is equipped with some ‘interpretative discretion’ that allows adjustment to the factually diverse situations that the International Criminal Court (icc) is confronted with. This form of discretion, however, is distinct from those procedural discretionary processes that have to be used to select which situations to investigate. Interpretative discretion nevertheless requires as much consistency as possible. As pathways to achieve that, this article challenges the concept of situational gravity. It further proposes to exclude any perpetrator-based element in the gravity assessment to harmonise the interpretation of gravity for potential and real cases before the ICC.

International Criminal Law Review / Volume 17 / Issue 5 / October 2017 / pp. 960-984