Anthea Roberts

Traditional and Modern Approaches to Customary International Law: A Reconciliation

The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.

COMPARATIVE INTERNATIONAL LAW? THE ROLE OF NATIONAL COURTS IN CREATING AND ENFORCING INTERNATIONAL LAW

Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

Power and persuasion in investment treaty interpretation: the dual role of States

States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tribunals often ignore the relevance and persuasiveness for interpretation of those parties� subsequent agreements and practice. The approach proposed here seeks to recalibrate interpretive power between states and tribunals by increasing consideration of such evidence.

Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration

In Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus for this article is clear: many states view investor-state arbitration as akin to a horse that has bolted from the barn. Wishing to close the stable door, a wide range of states are considering the merits of various reform proposals. Puig and Shaffers comprehensive and balanced framework for assessing the tradeoffs involved in making different choices is thus a welcome and timely intervention in these (often highly polarized) debates.

Comparative International Law: Framing the Field

At first blush, “comparative international law” might sound like an oxymoron. In principle, international law—at least when it arises from multilateral treaties or general custom—applies equally to all parties or states. As a result, international lawyers often resist emphasizing local, national, or regional approaches due to the field’s aspirations to universality and uniformity. Comparativists, meanwhile, frequently overlook the potential to apply comparative law insights to international law on the basis that “rules which are avowedly universal in character do not lend themselves to comparison.”

Crimea and the South China Sea

Although we often hear reference to the “invisible college” of international lawyers, it may be better to understand international lawyers as constituting a “divisible college” whose members hail from different states and regions and often form distinct, though sometimes overlapping, communities with their own understandings and approaches, as well as their own influences and spheres of influence. This chapter draws on two recent high-profile controversies—Crimea’s annexation by, or reunification with, Russia in 2014, and the legality and legitimacy of the award in the South China Sea arbitration in 2016—to explore how the divisible college of international lawyers operates with respect to Chinese, Russian, and Western international lawyers. It looks at the extent to which international lawyers in these case studies operated in their own silos or made an effort to communicate across national and geopolitical divides. These case studies tell us a number of interesting things about the field of Comparative International Law.

Introduction to the Symposium on the BRICS Approach to the Investment Treaty System

This symposium derives from a conference convened by Congyan Cai at Xiamen University in 2017, which brought together scholars and policy-makers from Brazil, Russia, India, China, and South Africa (the BRICS), together with several investment treaty specialists from Western states and international organizations. The idea behind the symposium was to investigate to what extent the BRICS took, had the potential to take, or should take a common approach to the investment treaty system. Part of the impetus for the Xiamen conference was the recognition that Western power in the investment treaty system had become less extensive in recent years than previously, while certain non-Western states were becoming more active in the regime.1 This rebalancing led to questions about the extent to which the approaches of the BRICS do—and should—differ from each other and from their Western counterparts, and the implications that the BRICS’ approaches could have on the current efforts to reform the investment treaty system. This introduction first gives a roadmap of the contributions in the symposium. It then reflects on some of the advantages and difficulties of bringing together scholars from diverse non-Western states and some of the lessons we learned in the process.