Part VI Emergency Arbitration in Investment Treaty Arbitration, 11 Emergency Arbitration in Investment Treaty Arbitration

This chapter discusses emergency arbitration in the context of investor-State dispute settlement (ISDS), and specifically, investment treaty arbitration. The key distinction between emergency arbitration in commercial arbitration and in investment treaty arbitration concerns the application of the second principle of emergency arbitration, namely that the parties must consent to emergency arbitration. Several jurisdictional issues may arise in an investment treaty emergency arbitration, which will not arise in the commercial context. Aside from various preliminary issues, including whether the claimant is a qualifying investor with a protected investment under the applicable treaty, these include issues of State consent, the application of cooling-off periods, and the treatment of most-favoured-nation (MFN) clauses. In addition, the principles applicable in an emergency arbitration in the commercial context to the standards applied to determine the application, and the measures that the emergency arbitrator may impose, are equally applicable in the ISDS context. Finally, the same enforcement issues which arise for an emergency arbitration decision in the commercial context are likely to arise in the ISDS context, and concerns surrounding State sovereignty might also be invoked as an additional shield in enforcement proceedings.

The Future of the Sovereignty Game

This chapter concludes with a theoretical and prescriptive analysis of the future of the sovereignty game. It highlights several past configurations of the international recognition regime, and identifies three potential future configurations that focus on remedial rights, primary rights, and state consent. The chapter also discusses the comparative statics of each configuration — that is, the expected frequency of secession, conflict, and the fitness of new states as a result of the regime. The chapter then shifts to a more prescriptive analysis of how the game might be improved. It argues, with caution, for the merits of a regime that emphasizes consent-based democratized secession, in which independence movements have formal institutional access but where the conditions for political exit are nevertheless hard to reach. The resulting benefits for the sovereignty game are that conflict would be reduced both within and between states. Ultimately, the chapter details the potential critiques of the study, noting that the proposal says nothing about the importance of a remedial right and maintained that it is quite difficult to implement.

2 The Origins and Sources of Jus Cogens

This chapter traces the origins and sources of jus cogens. Jus cogens has been developed largely by international legal scholarship, which has attempted to identify the theoretical foundations of a world juridical order. Every classic author in the field of international law expounds a theory of the source of obligation and the nature of international law. They typically distinguish between voluntary or consensual law and compulsory norms that bind a state independently of its will. Some early writers found the source of compulsory law in divine or religious law binding all humans and human institutions. A related theory derives the concept of jus cogens from general principles of law, noting the existence of overriding public policy and superior norms in all legal systems. Finally, positivists rely on state consent for the origin, content, and functions of jus cogens.

Рассмотрение исков о расовой дискриминации: вопросы юрисдикции и приемлемости в деле «Украина против России»

INTRODUCTION. Over the past decade, the International Court of Justice has been requested to adjudicate on claims under 1965 Convention against Racial Discrimination (CERD). While adjudication under treaty compromissory clauses is not uncommon, the Court’s jurisdiction under CERD is subject to conditions that are not replicated under other multilateral treaties. Therefore, the Court’s use of compromissory clause under CERD raises complex issues of treaty interpretation as well as of the Court’s compliance with consensually established limits of its own authority.MATERIALS AND METHODS. The article proceeds to examine the Court’s application of jurisdictional clause under Article 22 CERD in the case of Ukraine v Russia from the positivist legal perspective. It assesses the Court’s use of treaty interpretation methods relating to the text and context of Article 22, as well as CERD’s object and purpose. After assessing the Court’s analysis of its jurisdiction, the article proceeds to examine the Court’s use of the rule on exhaustion of local remedies which is one the condition of the admissibility of claims in cases relating to treatment of individual and their groups.RESEARCH RESULTS. The article demonstrates that the Court’s interpretation of Article 22 CERD does not accurately identify the meaning of this provision, especially the meaning of the word “or” contained in it. As a consequence, the Court ends up asserting jurisdiction in the case before the Committee established under CERD has dealt with it. Moreover, the Court concludes that the victims of alleged racial discrimination do not have to exhaust local remedies. This conclusion places the Court at odds with previous jurisprudence of all major international tribunals.DISCUSSION AND CONCLUSIONS. It becomes clear that the Court has asserted jurisdiction over the case even though CERD provisions did not confer that jurisdiction to it, and that local remedies were not exhausted anyway. As this face forms one rather small part of overall Russia-Ukraine relations, a temptation could obviously arise to justify the Court’s flawed legal reasoning by considerations of ethics, politics, ideology or justice. However, positivist legal reasoning requires maintaining that the Court operates on the basis of State consent, and any neglect for that fact risks negative consequences for the overall efficiency of international adjudication.

State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts

In light of repeated denials and obstruction of relief efforts by belligerent states, particularly when directed towards non-state armed groups designated as terrorist groups or justified as a legitimate response to the COVID-19 pandemic, this article provides a comprehensive analysis of the international legal position regarding the provision of humanitarian assistance in non-international armed conflicts. The article argues that although a general right of access has not crystalised, relief operations into territory under the effective control of a non-state armed group without state consent may be permissible with Security Council authorisation or otherwise, in appropriate circumstances, under the rules of state responsibility. More broadly, belligerent parties must abide by their legal obligations to ensure that the needs of civilians are met.

Justifying Shared Sovereignty

This chapter examines the normative debates around sovereignty sharing. It discusses the possible benefits of the practice and the numerous critiques of deep external intervention into fragile-state governance. It argues that three factors bear upon the perceived legitimacy of a sovereignty-sharing venture: host state consent, genuine humanitarian need, and strong observed or expected external performance in service delivery. It argues that to be perceived as legitimate by diverse audiences, sovereignty-sharing arrangements generally must rely heavily on performance.

How Political Foundations Affect Performance

This chapter analyzes the political factors that affect the performance of a sovereignty-sharing venture. It explains the need for a supportive political equilibrium to enable effective implementation of a joint venture that can earn performance legitimacy. Such arrangements usually rest on precarious political foundations, due to the divergent interests of the national and international partners. They are often built on compromised state consent, which leads to ambiguous agreements and to confusion and discord in the field. In particular, the chapter shows why sovereignty-sharing ventures have struggled to move beyond stopgap service provision to meet their second stated objective of advancing domestic institutional reform.