In association with the International Commission of Jurists

Emerging Voices

11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
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10 Jul

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.] The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]). The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits. All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states - including members of the Council of Europe - impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
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09 Jul

[Maninder Malli recently completed a LL.M. (International Legal Studies) at New York University and he is currently working with the Legal Vice Presidency of the World Bank in Washington, D.C.] International investment law (IIL) is highly dynamic.  The lack of a broad multilateral agreement on investment coupled with the rapid rise of foreign direct investment (FDI) has led to the profusion of bilateral investment treaties (BITs) and, increasingly, minilateral arrangements between three or more geographically-proximate or otherwise like-minded States.  The ‘spaghetti bowl’ of international investment agreements is becoming further entangled with hundreds of minilateral arrangements, including free trade agreements (FTAs) with investment provisions, economic partnership agreements and regional agreements. In many areas of international law, including international trade, States are abandoning glacial multilateral initiatives and opting for regional or sectoral approaches to solve global problems and coordinate mutually beneficial action.  Moses Naím suggests that the failure since the 1990s of most grand multilateral negotiations represents not only a perpetual lack of international consensus, but also a “flawed obsession with multilateralism as the panacea for all the world’s ills.”  Naím argues for a smarter, more targeted approach, by bringing to the relevant table “the smallest number of countries needed to have the largest possible impact on solving a particular problem.”  Francis Fukuyama, similarly, has advocated for “multi-multilateralism,” entailing a diversity of institutions and institutional forms to provide governance across a range of security, economic, environmental, and other issues. In the context of IIL, the profusion of regional investment arrangements (such as the recent trilateral investment agreement between China, Japan and South Korea and the Mexico–Central America FTA) and the ongoing discussions for investment regulation in a Trans-Pacific Partnership (TPP) and a Transatlantic Trade and Investment Partnership (TTIP) are clear evidence of this minilateral trend.  As proposed in the TPP and TTIP, investment regulation is incorporated into broader economic arrangements which often include trade, intellectual property and regulatory coherence.  The Energy Charter Treaty (ECT) is a sectoral example of a minilateral treaty which entails investor protection.  States are clearly converting their strong bilateral economic and political relationships into minilateral arrangements to regulate FDI. These initiatives, at least in part, reflect a desire of State parties to circumvent broader multilateral efforts that lack consensus on the precise standards of treatment of foreign investors and thus fail to achieve substantive common ground.  The OECD’s failed Multilateral Agreement on Investment in the late 1990s and the inability to advance the multilateral investment agenda within the World Trade Organization illustrate the challenge of crafting comprehensive general principles and specific treaty provisions which are responsive to the diverse and vacillating economic, social and political conditions of a large number of States.  In the IIL context, this is most clearly manifested in the dichotomy between (i) the desire of States to attract FDI and to be perceived as active participants in the liberal economic order, on one hand, and (ii) the need to retain regulatory flexibility and avoid plethoric investor-state arbitration, on the other.  The absence of complete and adequate multilateral investment rules was historically blamed on the discord between capital-supplying and capital-receiving nations.  This dichotomy is today no longer as simple, as an increasing number of countries are both capital suppliers and capital recipients, and the correlation between the two is ever-fluctuating. I submit that greater attention should be paid to the potential for minilateral arrangements to better reflect modern State desires and ambitions for reciprocal FDI promotion and protection.  While the content of most investment agreements is remarkably similar, there are important deviations in the wording, application and interpretation of many substantive provisions. 
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08 Jul

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University] Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape. “Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights. Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay “Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities. The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law.
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08 Jul

It's been a few months in the making, but today we're kicking off our inaugural Emerging Voices symposium. Until late August, we'll bring you a wide variety of posts, all written by graduate students, junior practitioners and junior academics. So watch this space if you want to read more about international law's often forgotten connections with the humanities, expat voting rights under...

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