Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support which paradigms and why? This Article critiques the role that the five most common interpretive paradigms are playing in attempts to understand the nature of the investment treaty system. It provides a schema for analyzing what these approaches reveal and obscure about the system and why they often support conflicting outcomes on controversial issues. It also explores why different actors - including states, investors, NGOs, arbitrators and academics - are likely to argue for, or default to, different paradigms based on their divergent interests and/or backgrounds.

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This article considers whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts. International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states, yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states.

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A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tribunals often overlook or undervalue the relevance of the treaty parties' subsequent agreements and practice. This article seeks to redress this imbalance by proposing an interpretive approach that takes better account of such evidence.

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Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

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To many commentators, unilateral humanitarian intervention poses the dilemma of what states should do when there is a great divide between what international law requires and what morality dictates. This issue was brought into sharp relief by NATO’s bombing campaign in Kosovo in 1999. Most western international lawyers concluded that NATO’s use of force was both morally justified and incompatible with international law. In short, NATO’s actions were ‘illegal but justified’. The ‘illegal but justified’ approach provides an intuitively attractive way of maintaining the prohibition on unilateral uses of force while permitting justice in individual cases. However, it is ultimately not a sustainable position given the role of state practice in developing international law. This approach also shifts the focus away from questions of legality and towards questions of legitimacy, which can undermine the law and risk manipulation. 

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This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.

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What impact are US policies having on the fabric of international human rights law in the wake of September 11? This paper examines this question from three largely independent angles. First, US policies embody discrimination against non-citizens and between non-citizens, which is pushing international law to clarify the rights of non-citizens and the relationship between such discrimination and discrimination based on race, nationality and religion. Second, in assessing the impact of US policies, we must consider not only the actions of the United States but also the reactions of the rest of the world. When we broaden our focus in this way, interesting divisions emerge both between states and within states, which are relevant to the formation of customary international human rights law. Finally, the premise that the international terrorist threat is `novel` has been used by the United States to justify picking and choosing between existing laws and to claim that there are legal vacuums in international law. This raises questions about the validity of taking an à la carte approach to international law and whether there are ways to protect against similar legal vacuums arising in the future.  

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Working Paper available at SSRN

What impact are US policies having on the fabric of international human rights law in the wake of September 11? This paper examines this question from three largely independent angles. First, US policies embody discrimination against non-citizens and between non-citizens, which is pushing international law to clarify the rights of non-citizens and the relationship between such discrimination and discrimination based on race, nationality and religion. Second, in assessing the impact of US policies, we must consider not only the actions of the United States but also the reactions of the rest of the world. When we broaden our focus in this way, interesting divisions emerge both between states and within states, which are relevant to the formation of customary international human rights law. Finally, the premise that the international terrorist threat is `novel` has been used by the United States to justify picking and choosing between existing laws and to claim that there are legal vacuums in international law. This raises questions about the validity of taking an à la carte approach to international law and whether there are ways to protect against similar legal vacuums arising in the future.

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Working paper available at SSRN