Reflections

The European continent is today facing a multifaceted crisis that extends over several levels, forming a complex tangle that must be unpicked in spite of its uncertain and tentacular appearance. To help us in this task, let us refer to the work of philosopher Paul Ricoeur who, in a lecture in 1986,...

The Chilcot Report

The inquiry by the United Kingdom into its decision to intervene in Iraq is one of the longest running and most comprehensive examinations of government decision-making. In particular, the inquiry examined in detail the processes by which legal advice was provided to and formed a part of the decision by the Government of the United Kingdom to intervene in Iraq. Through this lens, the current chapter examines what the inquiry illustrates about the general relevance of international law to the decision to intervene in Iraq and more broadly what illustrates about the role of international law in decision-making more generally. In particular, the chapter pertains to the practical and ethical aspects providing international legal advice to government as well as the nature of government legal practice more generally.

The Paris Agreement and the Future of the Climate Regime

This chapter discusses how international law has responded to climate change, focusing on the challenges that have faced implementation of existing climate treaties, and on the suitability of the Paris Agreement to address these. Expectations of this new treaty could scarcely be greater: the Paris Agreement is meant to provide a framework to improve international cooperation on climate change, and to keep the world within the global mean temperature-change goal identified by scientists as safe. Yet, whether and how this important objective will be reached largely depends, on the one hand, on the supporting political will and, on the other, on the redesign of the international architecture for climate governance. This chapter specifically reflects on international law-making and on the approach to climate change governance embedded in the Paris Agreement, drawing inferences from the past, to make predictions on what the future may hold for international climate change law.

The Future We Want

Sustainable development is currently acknowledged as a new paradigm in international investment protection law—to be taken into account when planning domestic investment policies and drafting future investment agreements. This chapter aims to provide a recontextualization of the current investment regime, integrating emphasis on protection of interests that go beyond sheer economic value in the application of investment law. To achieve this aim, this chapter incorporates two conceptual parts. The first provides an analysis of the term ‘economic development’ as the object and purpose of the existing international investment regime. The analysis suggests that economic development is a generic term whose meaning today must be contextualized by sustainable development, a concept that essentially seeks an equitable balance of economic development, social development, and environmental protection. Thus, sustainable development—being the recognized object and purpose of investment protection law today—requires equilibrium between the state’s regulatory responsibilities and the foreign investor’s interests. In the second part, the author suggests that, in pursuit of balance, sustainable development—again, the inherent objective of investment protection—may alter perceptions of applicable law and guide contextual and effective interpretations of investment protection standards towards a focus on wider interests than those of foreign investors alone. As a result, it may influence the methodologies that are used in order to establish violations of investment guarantees.

The Challenge of ‘Foreign Fighters’ to the Liberal International Legal Order

This chapter proposes an analysis of Security Council Resolution 2178 (2014) as an illustration of how states used the institutional structure set up by the liberal international legal order in order to provide a comprehensive framework for addressing the mobilization and recruitment of so-called foreign fighters. In the second part of the chapter, two particularly emblematic policies tailored towards addressing ‘foreign fighter’ mobilization will be analysed. First, against the background of the ‘foreign fighter’ phenomenon, initiatives to prevent violent extremism and radicalization have gained traction with a particular focus on the abuse of modern information and communication technology to incite support for terrorism and spread violent extremism is highlighted. Second, states increasingly resort to revocation of citizenship as a part of their counterterrorism arsenal.

Investment Law and Renewable Energy

The last decade witnessed the emergence of an international market for renewable energy. Foreign investment is particularly important in this field. Governments around the world have implemented economic support mechanisms to encourage private investment, leading a substantial number of companies to invest in renewable energy production. However, for different reasons several countries decided to reduce or eliminate those incentives, unleashing a wave of arbitration claims. Foreign investors are challenging such measures, claiming that they reduce the profitability of their investments in a way which is contrary to the obligations borne by host states under international investment agreements. The crux of the question is whether investors can seek compensation under investment treaties when governments encourage investment via economic support schemes but decide to reduce or eliminate them after the investment is sunk. These disputes raise a classic problem in investment law: how to strike a balance between foreign investors’ reliance on the regulations that underpin their long-term investments and the host state’s right to adapt regulations to new circumstances.

Activating the Mutual Assistance Clause of the Treaty on the European Union and the Right of Self-defence

Following the 2015 Paris attacks, one of the most discussed issues is whether the Paris incidents constitute an ‘armed attack’ requisite to trigger the right of self-defence in light of the wording of Article 51 of the UN Charter of 1945. Indeed, should the responses of the Member States to the Paris attacks, activating the mutual assistance clause, be seen as a move towards the formation of a new customary rule reshaping the content of the right of individual or collective self-defence in accordance with Article 51 of UN Charter and customary law? Or should that invocation of Article 42 (7) TEU be considered a violation of the UN Charter law of self-defence? This chapter examines the textual and contextual elements of Article 51 of the UN Charter and the practice of States since then, mainly in the context of the activity of the UN Security Council. After a careful examination of those elements, it concludes that if it can be said that the existing rule in international law in both conventional and customary law allowing states to have recourse to the use of force in self-defence can only be legally exercised in the presence of an armed attack committed by a state, it can be argued that the current practice of states appears to be heading in another direction. For the drafters of Article 51 of the UN Charter the right of self-defence was already ‘inherent’. If they had been in the current situation, they may have extended this right to cases of major terrorist attacks. In view of this context, the invocation of Article 42 (7) TEU in response to a serious terrorist attack, like those in Paris in November 2015, cannot be considered a violation of Article 51 of the UN Charter. Many of the EU Member States are prepared to entertain a new interpretation of that provision, at least that portion which respects the scope of the ratione personae.

Authorizing Attacks in Response to Terrorist Attacks

Some states (mainly the United States and Israel) intermingle the terms/principles of the law of armed conflicts/international humanitarian law regime and the regime of the law on the use of force in order to avoid legal constraints and to justify attacks against non-state armed groups in violation of the sovereignty of other states and the rights of particular persons. The counterterrorism strategy is created under the influence of legal arguments, and thus the recent trend of abusive interpretation of the regimes could encourage decision-makers to resort to military measures instead of using less intrusive instruments such as criminal cooperation. This tendency is more visible in times of crisis. States are then still interested in having legal justification for their actions, but they tend to see the role of law differently: the law is expected to serve the authorities, rather than to guide them, when the state’s fundamental interest—its security—is under threat.

How to Limit Immunity of State Officials from Foreign Criminal Jurisdiction

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities under international law but will focus only on immunity of state officials. Immunity of state officials from foreign criminal jurisdiction is governed by customary international law whose exact scope is often debatable both in theory and in practice, particularly in connection with the international effort to end impunity for the most serious crimes under international law, such as genocide, war crimes, and crimes against humanity, including torture and enforced disappearances. Although state practice and case law of the International Court of Justice supports the absolute immunity ratione personae of the highest officials, such as head of state, head of government, and minister of foreign affairs, as long as they are in office, the situation of immunity ratione materiae that protects the official acts of other state officials seems to be less clear. There are good arguments in favour of exceptions to such immunity, at least in respect of crimes under international law.

Recent Opposing Trends in the Conceptualization of the Law of Immunities

Traditional rules concerning immunity of states from jurisdiction are currently being challenged by Italian domestic courts, seeking the possibility to provide exceptions to foreign immunity based upon the gravity of the foreign state’s conduct and the consequences for human rights following recognition of immunity. This trend is opposed to others that do recognize immunity for states, state agents, and international organizations, even where these do not establish internal procedures to adjudicate or ensure access to justice. The aim of the present work is to reconstruct the opposing emerging trends so as to reflect on their value in the promotion of new rules, and to determine their consequences in terms of the ‘crisis of the law of state immunity’.