Yannick Radi

Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one’s perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

International Investment Law and Development: A History of Two Concepts

Since the aftermath of decolonization to the current globalization, international investment law and development have had a long common history. This paper endeavors to demonstrate that -- from a legal point of view -- international investment law has always aimed at promoting development: yesterday, economic development, today, sustainable development. Along this teleological evolution, I put forth that this regime, taken as a whole, has never sacrificed the public interests attached to the concept of the right to development and sustainable development, i.e. the environment, human rights and labour rights. To sustain this claim, this paper unravels and examines the policy objectives and challenges, the legal uncertainties and innovations that have characterized the relationship between international investment law and development in the practice of states and arbitration tribunals.

Standardization: A Dynamic and Procedural Conceptualization of International Law-Making

The paper analyses the dynamic procedures which work at the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making which works for normative coherence in contexts characterized by cooperation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue which is crucial to reach normative coherence. Drawing the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Besides, the paper points out the predominance of normative coherence as well as of its ‘guarantor’, i.e. procedure that its author considers as the cornerstone of legal certainty in the cooperative context of the international society.

The coherence of International Law: an illustration by International Investment Law

The contemporary international law discourse has for many years been captured by the unity/ fragmentation debate. Yet, these concepts are of little help when one tries to understand how the international legal order really works, i.e., how the various entities and their interests interact on the international plane. This article argues that the concept of ‘coherence’ manages to reach such an understanding. In support of this statement, this article analyses how this Aristotelian concept allows one to conceive of the synchronic and diachronic balancing of interests which characterizes the making of international law. To do so, it focuses on international investment law. More precisely, it first describes the various interests at stake in investment treaty arbitration. It then examines how they are synchronically balanced by arbitrators to settle a dispute. Finally, it investigates how they are diachronically balanced by the arbitration practice as a whole. Thereby, this article addresses various issues. In particular, it conceptualizes the conflicts that arise from investment disputes as conflict of interests and not as normative conflicts. Furthermore, it studies the role of legitimate expectations and “distinct investment-backed expectations” as methods of balancing. Last but not least, it emphasizes the systemization of the international investment law regime and the importance of “jurisprudences constantes”.