This post covers several events and initiatives at UCL Laws concerning international law.

Book launch: ‘Domestic Law in International Investment Arbitration’

On 1 June 2017 UCL Laws and the UCL Workshop Series on Investment Law and Policy (ILAP), in conjunction with Investment Arbitration Reporter held an event for the launch of the book ‘Domestic Law in International Investment Arbitration‘ by Dr Jarrod Hepburn.

Domestic Law in International Investment Arbitration: About the book

Although domestic law plays an important role in investment treaty arbitration, this issue is little discussed or analysed. When should investment treaty tribunals engage with domestic law? How should investment treaty tribunals resolve matters of domestic law? These questions have significant ramifications for both the legitimacy of the investment treaty system and the arbitral mandate of the tribunal members. Drawing on case law, international law principles, and comparative analysis, this book addresses these important issues.

Part I of the book examines three areas of investment law-the ‘fair and equitable treatment’ standard, expropriation, and remedies-in which the role of domestic law has so far been under-appreciated. It argues that tribunals are justified in drawing on domestic law as a relevant factor in their rulings on these three issues. Part II of the book examines how questions of domestic law should be resolved in investment arbitration. It proposes a normative framework for use by tribunals in ascertaining the contents of the domestic law to be applied. It then considers counter-arguments, exemptions, and exceptions to applying this framework, and it evaluates how tribunals have ruled on questions of domestic law to date.

Investment treaty arbitration has endured much criticism in recent times, partly over fears of its encroachment on sovereignty. The book ultimately contends that closer attention by tribunals to one of the principal expressions of a state’s sovereignty-the elaboration of its domestic law-will reduce criticism of the field

Martins Paparinskis (UCL Laws) and Alison Macdonald (Matrix Chambers) served as discussants; the event was chaired by Lauge Poulsen (UCL Political Science).

Event summary

On 22 November 2016 Devika Hovell, Associate Professor in Public International Law at LSE, spoke at UCL. She discussed the authority of the UN Security Council (UNSC), and its nature. At the outset, the speaker observed that there was little interest among international lawyers, and even less so among the international organisation lawyers, in adopting theoretical approach to international law. Instead, the law of international organisations was developed by practitioners, often in a patchy manner and in response to specific practical challenges. In this process of development, it were the positivism and realism that guided and controlled the development of this legal discipline. In this regard, the speaker referred to Dworkin’s advice to lawyers and philosophers to improve ‘the jurisprudential discussion of international law’.

In pursuing her goal to develop a concept of the UNSC’s authority, Devika Hovell challenged two orthodoxies. The first orthodoxy, from the domain of international law, reflects the idea of State consent as a source of the UNSC authority. According to this positivist approach, the authority emanated from Articles 25 and 103 of the UN Charter that imposed on the States an obligation to comply with the UNSC decisions and established the primacy of the States’ obligations under the UN Charter. In the opinion of the speaker, the State consent based on a singular act of the State’s consent to the UN Charter, was not sufficient of a basis for the UNSC authority. The justification of such authority had to be more complex.

The second conventional wisdom that Dr Hovell sought to deconstruct concerned the jurisprudential domain. Under this orthodoxy, individual autonomy constitutes the ultimate source of the authority of international law, and thus it is the objective of safeguarding the individual autonomy that endowed international law with authority and State autonomy with value. However, in her opinion, this approach does not fully reflect the place of the State and the State interests in international law. It also does not take into account that international law commands authority over States, and not individuals. The individual autonomy-based approach can also be said to be unsuitable for explaining the authority of the UNSC since the latter is primarily focused on the collective responsibility in the face of common threats rather than on promotion of individual interests.

The authority of international law rests primarily on the belief and conviction of those to whom its rules are directed, that they have a role to play in the rule of law itself. Dr Hovell noted the view expressed by Sir Michael Wood in the course of the Iraq Inquiry. Addressing the comment that the absence of a court meant essentially that states could interpret Security Council resolutions as they wished, Sir Michael Wood replied that; “[T]he absence of a court, I think, is a reason for being more scrupulous […].

It is one thing for a lawyer to say, “Well, there is an argument here. Have a go. A court, a judge, will decide in the end”. It is quite different in the international system, where that’s usually not the case. You have a duty to the law, a duty to the system. You are setting precedents by the very fact of saying things and doing things.”

Dr Hovell proposed a grundnorm for the authority of the UNSC that would be based neither on State consent nor on individual authority, but will be grounded in the idea of ‘shared responsibility’. In this regard it is necessary to consider two aspects of the UN Security Council authority: ‘representativeness’ and ‘purposiveness’.

UN Security Council has often been criticised as being unrepresentative. Legitimising its authority would entail the idea that this authority is ‘shared’ with others. Although most theoretical accounts focus on authority held by a single actor, in contemporary international society there are multiple locations and levels of public authority and individuals are increasingly subjected to various overlapping authorities. There is thus a need to separate the authority from sovereignty as well as from the notion of exclusivity. Quoting the writings by Nicole Roughan, Dr Hovell referred to the concept of ‘relative authority’ which reflects the idea of isolation of authority from sovereign power ‘in order to consider its operation in circumstances of plurality’.

Dr Hovell concluded by noting that some have argued that the main problem with the UN Security Council does not lie in its lack of resources or unrepresentativeness, but rather in the lack of any agreement as to its purpose. In the speaker’s opinion, the purpose of the Security Council could not be spelled out in a document of a constitutional nature. Instead, Dr Hovell proposed a procedural and responsibility-based approach to the question of the legitimacy of the UNSC.