Eric De Brabandere

Promises and Perils of New Global Governance: A Case of the G20

In the wake of the 2008 financial crisis, a new global governance structure emerged. During and subsequent to the crisis, the G20 arose as a coordinating executive among international governance institutions. It set policy agendas, prioritized initiatives and, working through the Financial Stability Board, drew other governance institutions and networks such as the International Monetary Fund, the Basel Committee on Banking Supervision, the Organization of Economic Cooperation and Development, the World Trade Organization, the International Association of Insurance Supervisors and the International Organization of Securities Commissions to set standards, monitor enforcement and compliance, and aid recovery. Its authority cross-cuts regimes and creates collaborative linkages between economic law and social issues such as food security and the environment. Its leadership role, born out of exigency, now continues to evolve as part of the new international economic law order. The G20’s coordination of institutions and networks exemplifies a new form of global governance. Network coordination offers an opportunity to confront complex problems with a needed comprehensive approach. The institutions and networks engage in an ongoing dialectical process that propels standard setters towards convergence on a number of fronts. The actors in this process employ a variety of tools to forge consensus and the G20 leverages this consensus-creating process to achieve its goals. Unpacking these tools can help us tackle intricate questions that arise from this new structure. In particular, we focus on concerns of effectiveness and legitimacy originating from the G20’s coordination of multiple networks and institutions.

Democratic Governance and Post-Conflict Reconstruction

The concept of democracy has long fuelled controversy among international legal scholars, especially concerning its definition. This article is an attempt to single out three constitutive elements of democracy that have been subject to extensive scrutiny in the practice of electoral assistance and the more comprehensive peace-building and state-building missions that the UN has taken up or supported since the end of the twentieth century: free and fair elections, freedom of association - with emphasis on the freedom to establish political parties - and freedom of expression. In doing so, this paper examines the role and the importance of each of these three constitutive elements in the practice pertaining to post-conflict reconstruction of Kosovo, East Timor, Afghanistan, and Iraq.

Non-State Actors, State-Centrism and Human Rights Obligations

Despite not being an entirely new debate in international law and international relations, the nexus between human rights and non-state actors has become a highly relevant topic of scholarly research, as witnessed by three works published in 2005 and 2006 (P. Alston, Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005), A. Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006) and O. De Schutter, Transnational Corporations and Human Rights (Oxford: Hart Publishing, 2006)), which are the subject of this article. The discussed books share the common feature of examining the supposed weakening of the existing classical state-centric approach in international (human rights) law, therefore moving away from the traditional view that under human rights law, the individuals hold the rights, while only states bear the obligations. This paper centres on the discussion on the descriptive and normative dimensions of the debate, and starts with a synopsis of the rationale behind these works, and the invoked factual necessity to consider changing the normative framework (1). Secondly, the paper analyses the question of subjects in international law, the role of non-state actors in the current international legal framework, and the normative challenges to this system (2). The second part also includes elements on the reasons why existing international law is seen to be unable to grasp these evolutions. The contents of the human rights obligations of non-governmental organisations, international organisations and transnational corporations will also be included in the second part.

Co-Existence, Complementarity or Conflict? Interaction between Preferential Trade and Investment Agreements and Bilateral Investment Treaties

The most remarkable evolution in the field of international investment law is undoubtedly the massive proliferation of Bilateral Investment Treaties (BITs) and Preferential Trade Agreements (PTAs), either in the form of Free Trade Agreements (FTAs) of Custom Unions (CUs). PTAs increasingly, as will be pointed out, contain provisions on the liberalization and/or protection of foreign investment, and may then be referred to as Preferential Trade and Investment Agreements (PTIAs). PTAs differ substantially in terms of the extent to which they cover investment. Agreements in the area of trade and investment either contain explicit provisions on the protection, and possibly the liberalization of foreign investment, or are aimed essentially at the regulation of trade in services and/or goods, in which case the provisions on investment are usually less extensive than in the former or even completely absent. BITs and modern PTAs which include investment protection (and liberalization) provisions, which may then be categorized as PTIAs, follow the first approach, and thus contain extensive provisions on both the liberalization and the protection of foreign investment (PTIAs), while the majority of the traditional PTAs follow the second approach, containing only a framework or framework provisions committing to further liberalization, protection and promotion of investment. This contribution aims to analyze the interrelationship between the network of bilateral investment treaties and PTIAs with respect to the protection of foreign investment. In doing so, this contribution will examine the differences in the content and rationale of PTIAs as compared to BITs, and in particular how substantive investment protection and investment dispute settlement are dealt with in PTIAs and BITs. Finally, this contribution will address whether conflicts between PTIAs and BITs are possible, and if so, how these conflicts may be addressed.

The Leiden Journal of International Law at 30

In 2017 the Leiden Journal is celebrating its 30 th anniversary. Since the inception of the journal in 1988, much has changed. This includes not only the structure, lay out, organization and publisher of the journal, but also the general environment in which the journal is published. This editorials aim is to briefly sketch the journals life over the past 30 years and to reflect on it.

The Use of Precedent and External Case-Law by the International Court of Justice and the International Tribunal for the Law of the Sea

Judicial decisions are explicitly mentioned in Article 38 of the Statute of the International Court of Justice (ICJ) as ‘a subsidiary means for the determination of rules of law’. Doctrine and judicial decisions are then usually categorised as subsidiary or material sources. Despite the absence of any rule on binding precedent in international law generally, references to previous cases of both the Permanent Court of International Justice and the ICJ, and increasingly also case-law from other courts and tribunals, in the decisions of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) are a widespread phenomenon. This article aims at mapping and critically evaluating the practice of the both the ICJ and ITLOS in using and relying on their own previous case-law or external case-law of other international courts and tribunals. I will first identify the conventional principles applicable to judicial and arbitral decisions as ‘sources’ of international law. I will next map the practice of the ICJ by investigating the ways in which the ICJ has used its previous decisions, as well as those of its predecessor, and that of other international courts and tribunals. Finally, I will discuss and analyse the practice of the ITLOS.

The Activities of the Leiden Journal of International Law: Past, Present, and Future

The Leiden Journal of International Law (LJIL) is many things. In the present editorial we highlight three of its activities – both old and new. First, we look back briefly at the symposium on ‘The Changing Role of Scholarship in International Law’ that we held in March 2015. Second, we present the winner of the second LJIL Prize and draw attention to her contribution. Third, we announce the first LJIL lecture and introduce the inaugural laureate. We do this in a way that continues to reflect on the roles of the journal. We do not aspire to define its identity simply because we value its diversity too much. But we wish to contribute to the ongoing debates on how a journal of international law might position itself in light of many new outlets for scholarship, in the context of porous or battled disciplinary frontiers, and in response to expectations that scholarship ought to meet. These are recurrent issues in the journal and its editorials. In particular, Carsten Stahn has drawn attention to the theme that shaped the symposium, the changing role of scholarship. He has since stepped down as an Editor-in-Chief and Ingo Venzke has assumed this position, continuing to work alongside Eric De Brabandere. Once again we thank Carsten for his immensely valuable contributions to the journal – past, present, and future.

Immunity of International Organizations in Post-Conflict International Administrations

The role played by international organisations in international law has evolved in the past decades. However, the continued application of an absolute system of immunities to international organisations has often lead to a perception of impunity , in particular when organizations are involved in the administrations of foreign territories. Even though absolute immunity has been described as an ‘anachronism,’ this article argues that international organisation immunity serves a useful and essential purpose. The grant of privileges and immunities to international organisations is indispensable to allow the organisation to effectively and independently carry out its functions. The functional reflections that lie at the basis of the immunities system of international organisations still are extremely pertinent when organisation exercise administrative duties in place of a state. This articles thus claims that there is a need to maintain immunities in order to preserve institutional autonomy, even when the UN has taken up administrative duties in a state or territory, and suggests that instead of proposing a revision or abolition of the system of immunities, the focus should be placed on the establishment of effective alternative mechanisms to assess alleged violations of the international legal obligations of the organisation.

Fair and Equitable Treatment and (Full) Protection and Security in African Investment Treaties: Between Generality and Contextual Specificity

This article seeks to test whether African investment treaties present a specific approach – i.e. distinct from the North-American and Western Hemisphere – to fair and equitable treatment (FET) and (full) protection and security (FPS). The first main argument is that the concepts of FET and FPS are not substantially impacted by the mere fact of being included in investment agreements to which African States are party. The second main argument is that the understanding, interpretation and definitions of these concepts within Africa is not fundamentally different than in other regions. Thirdly, notwithstanding the similarity in the wording of these standards of treatment in African investment treaties, there may still be room for taking into account the specific circumstances of the States in which the investment is made, including the level of development of the host State.

Sanctions and International Arbitration

This chapter focuses on the impact of sanctions on international arbitration which can be provided for in contracts which have been targeted by the sanctions, or in international investment agreements. There are indeed many aspects to this interaction, both legal and practical. On a general jurisprudential level, economic sanctions highlight various complexities within the arbitral process, viz. the operation and interaction of various laws and legal systems (the lex arbitri and law governing the arbitration agreement, the substantive law of the contract and the law of the enforcing jurisdiction as well as overriding international law principles). These various laws may be in play throughout the process, to be applied not only by tribunals themselves during the course of proceedings, but also potentially by courts deciding or reviewing questions of jurisdiction and public policy (whether at the seat or in the enforcing jurisdiction). On a more practical level the increase in relatively recent sanctions regimes has led to growing discussion about the implications of these regimes for arbitrators and arbitral institutions.This chapter will discuss these two questions in two separate sections. The first section discusses the arbitrability of the dispute, the impact of sanctions on the jurisdiction of an arbitral tribunal, and the impact of sanctions on the enforcement of the arbitral award. The second section tackles the influence of sanctions on the conduct of arbitration proceedings. This chapter covers international arbitration in general, making no distinction between international commercial arbitration and international investment arbitration, the questions arising in both areas being of a similar nature, unless otherwise mentioned. This chapter however does not engage with the question of the effect of sanctions on the performance of contractual or other obligations which may have been affected by the imposed sanctions which is discussed elsewhere in this volume. Similarly, this chapter does not engage with the conformity of sanctions with international economic and trade law, notably in the context of the World Trade Organization, which is covered by Andrew Mitchell in his chapter in this volume.