Research

Current projects

Sanctions and Embargoes under International Law

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the United Nations), but also regionally (the European Union in particular) and unilaterally.

The nature of measures imposed has also changed: from comprehensive sanctions regimes (discredited since Iraq in the 1990s) to 'targeted' or 'smart' sanctions directed at specific individuals or entities (through asset freezes and travel bans) or prohibiting particular activities (arms embargos and export prohibitions).

Focus & Aim

Bringing together scholars, government and private practitioners, the research project provides an overview of recent developments and an analysis of the problems that they have engendered. Issues considered include:

  • the human rights of persons targeted and the mechanisms established to challenge their listing;
  • in cases of sanctions imposed by regional organizations and individual States, the rights of third States and their nationals.

By Matthew Happold

Business and Human Rights: Searching for International Standards for Corporate Conduct in Domestic Case Law

Human rights abuses committed by or with support of multinational corporations (MNCs) have become one of the pressing issues facing the world today. The design and operational structure of MNCs combined with their economic and political power has made them extremely difficult regulatory targets. As private legal persons, operating transnationally, multinationals are controlled neither by international law  nor the legal norms of any single state.

Since the 1970s, there has been increased scrutiny of corporate deprivations of human rights and discussions on the relevance and exact role of international law in regulating human rights abuses by MNCs. This has resulted in a number of non-binding, quasi-legal instruments addressing corporate human rights obligations including various declarations, guidelines, corporate and industry codes of conducts. The persistent impunity of corporations, however, has raised concerns and questions about the contribution of those existing frameworks to corporate accountability.

Focus & Aim

This research project focuses on civil lawsuits across different legal systems which apply the substantive rules of international human rights law to corporations, either as direct perpetrators or accomplices to human rights violations.

The overall objective of the research is to frame the scope of corporate human rights obligations under international law with a focus on primary rules that are likely to affect the conduct of corporations. The subject matter is civil lawsuits in domestic courts – as well as legal settlements – and the case law of the Organisation for Economic Co-operation and Development (OECD) National Contact Points.

By Başak Bağlayan Ceyhan

Judicial Restraint in International Adjudication

International adjudicators are more and more often requested to pass judgment on matters that are traditionally considered to fall within the domestic or internal jurisdiction of States. Especially in the fields of human rights, investment law, and trade law, international tribunals are nowadays commonly required to evaluate decisions of national authorities that have been made in the due course of democratic procedures and public deliberation.

This poses a challenge to international adjudicators, as they need to exercise meaningful supervision while preserving the effectiveness of their judgments by giving due respect to the expertise and legitimacy of domestic decision makers. In many national legal orders, judicial authorities do not exercise de novo review with regard to legislative and administrative decisions, as this would allow them to usurp the powers of other branches of government. Instead, they apply some deferential standard of review.

Focus & Aim

The current research project investigates whether international tribunals in the fields of human rights, trade and investment law have also adopted deferential standards of review. It analyses to what extent international tribunals apply the same reasons for granting deference as their domestic counterparts, such as a concern for the democratic legitimacy of legislative or administrative measures and an acknowledgment of the expertise of specialised agencies, or whether deference is based on the specificities of the international legal order and notions of state sovereignty.

The project compares the approaches of the different tribunals to determine whether standards of review have a general relevance under international law or whether their content and application depend on the characteristics of the different regimes.

By Jeanrique Fahner

The role of national courts in the development of International Criminal Law

This project attempts to answer the following questions:

  • How effective are national courts in prosecuting individuals for committing international crimes?
  • How do their decisions to prosecute individuals or not, and how do the resulting verdicts affect the development of International Criminal Law?
  • Why do such decisions matter in International Law?

Dealing with international crimes, from war crimes to crimes against humanity, aggression and genocide, is essential for the interests of international law. The main responsibility for the prosecution of international crimes lies with national courts, as they are expected to assume a lead role in bringing perpetrators of international crimes to justice, according to the principle of complementarity, enshrined in the Rome Statute of the International Criminal Court.

Focus & Aim

This research project analyses the impact of domestic case-law in developing the definition of international crimes and the application and evolution of substantive international criminal law rules. It does so by examining the following fundamental issues:

  • The extent to which national courts make reference to international criminal law sources and case-law when adjudicating cases of international crimes;
  • If and when they do so, to what extent does national case-law follow the interpretations of substantive rules of international criminal law adopted by international courts.

The approach is based on the assembling of data (number of national decisions of supporting/opposing the aforementioned hypotheses), analysing the findings and producing concrete results on the influence that national courts exert in the development of international criminal law.

By Maria Pichou

Demystifying Consent: Examining the role of State consent to arbitration in the light of new developments in international investment arbitration

Perceptions of the role of State consent to arbitration in international investment law are going through significant changes.

Generally, the consent of the State is considered to be a crucial condition for a tribunal to have jurisdiction over an investor-State dispute, and as such it has been seen as the foundation of international investment arbitration.

However, in recent years, motivated by the belief that the primary purpose of investment treaty arbitration is the protection of investors, tribunals have increasingly adopted approaches which change the position or even undermine the importance of State consent. On the one hand, the role of State consent has become unclear, positioned as it now is in the shadow of investor protection. On the other, given this lack of clarity, in the last decade or so arbitral tribunals have sought to redefine what State consent means and how it can be manifested.

Focus & Aim

The research examines the position of the principle of consent in investment law in the light of the recent developments. The research has three particular objectives:

  • to resolve the problem of the initial concept of State consent in international investment law, comparing it with the role that State consent has traditionally played in public international law;
  • to identify the particular juridical instruments, mechanisms and gateways potentially engaging State consent;
  • and to answer the issue of how the application of such instruments, mechanisms and gateways has affected the interpretation of State consent.

The general aim of the research is to answer the question of whether State consent to arbitration in international investment arbitration is being redefined in favour of investor protection, and is there an erosion of its perception, when comparing it to the same principle in general public international law.

By Relja Radovic

 

Completed projects

International Responsibility under European Union Investment Agreements

Thanks to the amendments to the Common Commercial Policy introduced by the Treaty of Lisbon, the European Union (EU) is about to conclude a number of investment agreements (IA) with third countries. Such agreements are either taking the form of investment chapters of broader free trade agreements, as in the case of Comprehensive Economic and Trade Agreement (CETA), or of standalone bilateral investment treaties (BIT).

Focus & Aim

The current research project focuses on issues relating to investor-State dispute settlement (ISDS), and, as a consequence, to the apportionment of international responsibility between the EU and its Member States under the agreements in question.

The aim of this research is to examine in a comprehensive manner the structural issues of ISDSs established by EU IAs, in light of the recent developments of international investment arbitration.

As regards international responsibility, the project analyses the impact of EU investment treaty practice in relation to general issues of attribution of international responsibility, in particular the relation of such practice to the general rules of international law governing the responsibility of States and international organisations.

By Luca Pantaleo

Demarcation of the Temporal Jurisdiction of International Courts and Tribunals

In 2001, the Commission of International Law adopted the articles related to States’ responsibility for States’ internationally wrongful acts.

In particular, articles 14 and 15 refer to internationally wrongful acts in time, such as acts or omissions which extend in time in a continuous or composite way. The doctrine of continuing violations appears to have serious consequences on the substance of the dispute and the procedure of its litigation. This doctrine permits the extension of the notion of States’ internationally wrongful acts and as a subsequence the expansion of the jurisdiction of international courts and tribunals. However, it seems imperative to achieve a balance between, on one hand, the effectiveness of justice and, on the other, the necessary legal certainty in international law.

Focus & Aim

This research project responds to the question whether the doctrine of continuing violations is an effective means for the respect of public international law and the international protection of human rights or if is it a perilous tool causing legal uncertainty to the detriment of public international law.

Throughout the examination of the doctrine on States’ responsibility and international litigation and the jurisprudence of international courts and tribunals such as the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights and international arbitration tribunals formed according to the International Centre for Settlement of Investment Disputes (ICSID), United Nations Commission on International Trade Law (UNCITRAL) or North American Free Trade Agreement (NAFTA) system and in light of the diptych, efficiency of protection or legal certainty, a conclusion is attempted to be drawn, that is the doctrine of continuing violations to be treated cautiously, its legal application being accepted only under specific circumstances.

By Maria-Vasileia Komaïti