Monday, December 11, 2017
There is little doubt that res iudicata is a general principle of law. But its application in investment treaty arbitration remains varied. A recent fracture in the case law of investment tribunals concerns the apparent dilemma of the res iudicata effect, if any, of interlocutory decisions rendered under the ICSID Convention. The article explores res iudicata and its scope in light of the formal distinction between awards and decisions under the ICSID Convention. It engages critically with the relevant case law and argues that, in contrast to awards, decisions do not carry res iudicata effect. But the absence of res iudicata does not mean that the reopening of a decision is always justified and special regard must be had to the specific circumstances.
Sinclair: A Shifting Field of Battle: The United Nations and the Struggle Over Postcolonial Statehood
This draft chapter argues that decolonization effected a profound transformation in the legal structures and powers of the UN. The chapter traces a series of battles or struggles in the early UN, centred on the nature and functions of the postcolonial states, each of which resulted in innovations in the institutional framework and powers of the UN. In particular, the chapter focuses on three axes of struggle, in relation to the meaning of self-government, the values and practices of modern government, and the import of sovereign equality. These three axes of struggle eventually came together in the invention of a new institutional form, which has become the most visible ‘face’ of the UN today: the peacekeeping operation.
Sunday, December 10, 2017
Frankfurt Investment Law Workshop 2018: International Investment Law and Constitutional Law (9-10 March 2018)
For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law.
The 2018 workshop addresses the increasingly relevant relationship between international investment law and constitutional law. While both fields, for a long time, have kept maximum distance to each other, they are beginning to interact as constitutional courts around the world, such as the German Federal Constitutional Court, the French Conseil Constitutionnel, and the Court of Justice of the European Union, are being called to address the constitutional limits of international investment law and investment dispute settlement. Similarly, investment tribunals increasingly face constitutional law arguments, and investment law scholarship promotes the use of constitutional legal analysis to step up to the challenges the field is facing as an instrument of global governance.
The 2018 Frankfurt Investment Law Workshop will explore the different facets of the increasing interaction between international investment law and constitutional law and critically analyze the opportunities and challenges this interaction creates. The Workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges.
If you are interested in attending, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, E-Mail: S.Schimpf@jur.uni-frankfurt.de by 23 February 2018.
The current refugee and migration crisis, first and foremost the events during fall 2015, also has profound legal aspects. Recent state practice and academic discussions have shed new light on the status of the right to asylum and the non-refoulement principle. The principal finding is clear: There is still no generally accepted universal right to asylum. There nevertheless exists a far-reaching prohibition of extraditing, expelling, or deporting individuals to countries where they face a serious risk of mistreatment. States are not free to regulate the entry and stay of foreigners at will.
Saturday, December 9, 2017
- Hans Van Loon, At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work
- Bimal N. Patel, Marine Environment Law and Practice of China, India, Japan and Korea
- Ernst Ulrich Petersmann, Methodological Problems in International Trade, Investment and Health Law and Adjudication
- Noam Zamir, The applicability of the Monetary Gold principle in international arbitration
- Fabio G Santacroce, Navigating the troubled waters between jurisdiction and admissibility: an analysis of which law should govern characterization of preliminary issues in international arbitration
- Asif Salahuddin, Should arbitrators be immune from liability?
- Paula Costa e Silva & Duarte G Henriques, Arbitration in swaps: the Portuguese experience
- Agnish Aditya & Siddharth Nigotia, Semantic and doctrinal restructuring of ‘arbitrability’: examining Brekoulakis’ arguments in the Indian context
- Utkarsh Srivastava, Putting the jig saw pieces together: an analysis of the arbitrability of intellectual property right disputes in India
- Recent Developments
- Liang Zhao & Lianjun Li, Incorporation of arbitration clauses into bills of lading under the PRC law and its practical implications
- Paschalis Paschalidis, Arbitral tribunals and preliminary references to the EU Court of Justice
- Jonathan D. Caverley, Slowing the Proliferation of Major Conventional Weapons: The Virtues of an Uncompetitive Market
- Janos Pasztor, The Need for Governance of Climate Geoengineering
- Roundtable: The Roles of International Law and Just War Theory
- David Luban, Just War Theory and the Laws of War as Nonidentical Twins
- Valerie Morkevičius, Looking Inward Together: Just War Thinking and Our Shared Moral Emotions
- James Turner Johnson, A Practically Informed Morality of War: Just War, International Law, and a Changing World Order
- Edward Barrett, On the Relationship Between the Ethics and the Law of War: Cyber Operations and Sublethal Harm
- Christopher J. Preston, Carbon Emissions, Stratospheric Aerosol Injection, and Unintended Harms
- Carbon Emissions, SAI, and Unintended Harms: Three Responses
- Holly Lawford-Smith, The Comparative Culpability of SAI and Ordinary Carbon Emissions
- Sikina Jinnah & Douglas Bushey, Bringing Politics into SAI
- Mike Hulme, Calculating the Incalculable: Is SAI the Lesser of Two Evils?
- Special Issue: International Investment Arbitration in Southeast Asia
- Luke Nottage & Sakda Thanitcul, Special Issue: International Investment Arbitration in Southeast Asia: An Introduction
- Luke Nottage & Sakda Thanitcul, International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS
- Antony Crockett, The Termination of Indonesia’s BITs: Changing the Bathwater, But Keeping the Baby?
- Mahdev Mohan, Singapore and Its Free Trade Agreement with the European Union: Rationality ‘Unbound’?
- Sufian Jusoh; Muhammad Faliq Abd Razak & Mohamad Azim Mazlan, Malaysia and Investor-State Dispute Settlement: Learning From Experience
- Manh Dzung Nguyen & Thi Thu Trang Nguyen, International Investment Dispute Resolution in Vietnam: Opportunities and Challenges
- Romesh Weeramantry, International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?
- Jonathan Bonnitcha, International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It
- Romesh Weeramantry & Mahdev Mohan, International Investment Arbitration in Laos: Large Issues for a Small State
- Anselmo Reyes, Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism
Friday, December 8, 2017
The chapter argues that the traditional trinity of global constitutionalism can and should be extended to cover a fourth, a social limb. Just as national constitutionalism has embraced the social question, global constitutionalism needs to do the same in times of globalisation fatigue. To this end, global constitutionalism can build on and push further important trends in our post 2015-international legal order, notably the emerging cross-border social responsibility for individuals. The study of inter- and transnational social law standards and entitlements through the lens of global constitutionalism facilitates cross-fertilisation between social and liberal constitutional principles and works against playing those dimensions out against each other in a false competition.
By absorbing the social question, global constitutionalism can mitigate its neo-liberal tilt, and it is rescued from being reduced to a project to deepen the power of capital and to extend a market civilization in which the transnational investor is the principal political subject. With such a renovation from within, global constitutionalism can form part of a fresh ‘post-neoliberal imagination’ of international law.
This book analyses the exercise of authority by the UN Security Council and its subsidiary organs over individuals. The UN Security Council was created in 1945 as an outcome of World War II under the predominant assumption that it exercises its authority against states. Under this assumption, the UN Security Council and those individuals were ‘distanced’ by the presence of member states that intermediate between the Security Council’s international commands and those individuals that are subject to member states’ domestic law. However, in practice, the UN Security Council’s exercise of authority has incrementally removed the presence of state intermediaries and reduced the Security Council’s distance to individuals.
This book demonstrates that this phenomenon has increased the relevance of domestic law in developing the international normative frameworks governing the UN Security Council and its subsidiary organs in safeguarding the rights, obligations, and interests of those affected individuals. This book presents how the UN Security Council’s exercise of authority has been received at the domestic level, and what would be the international implications of the Security Council’s extensive encounter with the actors who primarily reside in a domestic legal order.
Quelle réalité recouvre l’émergence en droit international ? Dans quelle mesure ce phénomène contribue-t-il à l’évolution du discours sur le droit international, voire même à l’évolution des règles de droit international ? Alors qu’elle est devenue un thème récurrent de l’étude des relations internationales et des sciences économiques, l’émergence suscite de nombreuses interrogations en droit international auxquelles le présent ouvrage essaie d’ apporter quelques réponses.
Les contributeurs cherchent ainsi à mieux saisir la place et le positionnement des pays émergents dans les principaux domaines de la discipline (droits de l’homme, droit de l’environnement, droit international économique). Outre la délimitation des contours de la notion d’émergence, il s’agit de s’interroger sur le regard que portent les Etats relevant de cette catégorie sur les normes juridiques internationales, notamment au travers des positions qu’ils adoptent au sein des institutions internationales. D’autre part, il s’agit d’évaluer comment les autres Etats réagissent aux positions adoptées par les pays émergents et, plus largement, de déterminer dans quelle mesure les règles de droit international permettent à ces Etats d’émerger. Ce faisant, les analyses pluridisciplinaires proposées offrent un éclairage nouveau sur la réalité et sur les effets de la catégorie « pays émergents » dans l’ordre international contemporain.
Schreiner: Neutralität nach 'Schweizer Muster'? Österreichische Völkerrechtslehre zur immerwährenden Neutralität, 1955-1989
Das völkerrechtliche Institut der dauernden Neutralität als Chance oder Bürde einer jungen Republik? Österreich erhält im Jahr 1955 mit dem Staatsvertrag von Wien seine volle Souveränität zurück. Davor verpflichtete sich Österreich im Moskauer Memorandum zur immerwährenden Neutralität. Die völkerrechtliche Studie zeigt, wie die österreichische Politik, Wissenschaft und Bevölkerung versucht, die Neutralität zu definieren und einen Platz in Europa und der Internationalen Staatengemeinschaft zu finden. Die Analyse zeigt, wie sich die Semantik und die Funktionen der Neutralität im Beobachtungszeitraum gewandelt haben, wie sich das Neutralitätsbewusstsein der ÖsterreicherInnen verändert hat, welche Wechselwirkungen es zwischen innen- und außenpolitischen Ereignissen und der Reaktion der Völkerrechtswissenschaft gegeben hat und nicht zuletzt, wie die immerwährende Neutralität Österreichs definiert wurde und welche Bedeutung ihr nach wie vor zukommt.
Call for Papers: Challenging the Liberal World Order: The History of the Global South, Decolonization and the United Nations, 1955-2000
CFP: Challenging the Liberal World Order:
The History of the Global South, Decolonization and the United Nations,
Leiden University, 8-9 May 2018
Keynote Speaker: Vijay Prashad (Trinity College, Connecticut)
The United Nations is the central node in the system of global governance, organizing and managing the interaction and cooperation of the organs and specialized agencies of the institution with NGOs, corporate and civil society actors and increasingly, the global public. Despite the important role of the UN in this nexus, existing histories of the organization place an emphasis on the role of Western actors and often overlook the agency of countries from the Global South. This workshop will investigate how individuals, organizations, civil society actors and states from the Global South impacted upon the UN and the system of global governance in the latter half of the 20th century as they expanded the meaning of decolonization to address a range of North/South inequalities.
Significance of workshop:
From the moment of its inception, counties from the Global South began to organize in formal and informal groups around specific issues at the UN, an organization that was perceived as being full of promise for the construction of a more equitable and just world order. Through discussions and public debates in the General Assembly, and in the corridors and working groups of the UN, the campaign for decolonization became the primary focus of countries from Africa and Asia. As more countries became independent, the decolonization movement shifted from the assertion of sovereignty and the right to self-determination, to a host of other claims for a broad range of social, economic and political rights. Alongside Latin American countries and smaller neutral nations, the African and Asian groups and the Afro-Asian bloc cooperated at the UN on a range of issues from economic development to human rights, to the struggle against apartheid. The workshop seeks to analyze this cooperation to trace the way this dynamic activity changed the UN and impacted upon the various issues around which the Global South groups came together through issue based alliances and solidarity networks.
In recent years the historical role of international organizations has been the subject of increased attention from historians seeking to reassess their role in shaping the global order. Leading historians from Mark Mazower to Matthew Connolly have encouraged scholars to ‘take off the Cold War lens’ in analyzing international institutions and their impact on local, national and international politics. Others, such as Susan Pedersen have reminded us about the long-term significance of organizations in functioning as networked platforms and agents of international change. Drawing on this scholarship, the workshop will invite proposals which take innovative views of the UN as a space for international and transnational cooperation, a dynamic forum which reveals interactions between the Global South and the West as the latter tried to challenge the liberal world order leading to the resurgence of UN activism from 1990-2000.
This workshop will consider a variety of contributions using sources from empirical research while also taking account of interdisciplinary reflections on the historical role of international organizations from a transnational and global perspective. Topics may include:
- The emergence of ‘Third-Worldism’;
- How decolonization interacted with the Cold War at the UN;
- The evolution of the Afro-Asian Bloc and cooperation between the African and Asian groups;
- Economic Development, NIEO, UNCTAD, etc.;
- The response of the major powers to Global South demands for reform;
- The role of Global South countries in the campaign for human rights;
- The dynamism of Latin American states at the UN;
- The role of UN officials and the UN Secretariat;
- The participation of non-state actors and NGOs;
- The influence of officials from the Global South across these dimensions;
- The formation and import of transnational groups such as the G77 and the Non-Aligned movement;
- South-South and South-Soviet interactions;
- The resuscitation of the UN in 1990.
The workshop will take place from 8-9 May with a Keynote Lecture from Vijay Prashad during the afternoon of 8 May followed by a selection of workshop panels on 9 May. Adopting a different format in order to allow for more panels, there will be no formal presentations of work but a commentator will give a brief reflection of the papers to kick-off each panel. In this way it is hope that all participants will read the papers and a deep discussion will follow.
Submission of abstracts
Please send an abstract of max. 500 words and a short CV to the following email address: email@example.com by 1 January 2018. Authors will be notified regarding the acceptance of their contribution by 31 January. Invited speakers will be expected to submit a draft paper 1 month prior to the event, which will be circulated among all other participants. Some funding will be available for travel and accommodation.Contact Info:
Leiden University, The Netherlands.
Contact Email: firstname.lastname@example.org
Thursday, December 7, 2017
Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:
- make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;
- make increasingly consequential political commitments for the United States on practically any topic;
- interpret these obligations and commitments; and
- terminate or withdraw from these obligations and commitments.
While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years.
In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.
- Arancha Gonzalez, Making the Case for Trade in the XXI Century
- Eva Valle Lagares, Trade from the Trenches: Negotiating in Practice
- Marjut Hannonen, Implementation of EU Free Trade Agreements
- Penelope Naas, Emerging Issues in Free Trade Agreements
- Eugenia Costanza Laurenza & Fabienne` Goyeneche, Regulatory Cooperation in Free Trade Agreements: Perspectives from the Automotive and Information and Communication Technology Sectors
- Michiko Lloyd, Jessie Chen, & Melissa Irmen, The Process of Qualifying for Trade Agreements and the Differences/Challenges Around the World from an Industry Perspective
- Laura Carola Beretta & Agnieszka Smiatacz, Is the Supreme and Constitutional Courts’ Rebellion Against EU Law a Threat for the Lack of Direct Effect of the New Generation EU Free Trade Agreements?
- Vera Kanas & Carolina Müller, The New Brazilian Anti-Dumping Regulation: A Balance of the First Years
- Zhaokang Jiang, Trade Facilitation and Customs Compliance for Cost-Saving and Efficiency: Policies, Practices and Proposals – A China Case Study
- Bruno G. Simões & Tobias Dolle, How to Properly Account for Sustainable Production and Supply Chains in Modern Tariff Schedules and Trade Rules
- Jamil Ddamulira Mujuzi, The African Court on Human and Peoples’ Rights and Its Protection of the Right to a Fair Trial
- Matteo Sarzo, Res judicata, Jurisdiction ratione materiae and Legal Reasoning in the Dispute between Nicaragua and Colombia before the International Court of Justice
- Paula Wojcikiewicz Almeida, Beyond Compliance: Law-Making through Latin American Cases before the World Court
- Baptiste Martel, The Protection of United Nations Whistleblowers against Retaliation
- Tamar Meshel, The Croatia v. Slovenia Arbitration: The Silver Lining
- Fernando Lusa Bordin, Procedural Developments at the International Court of Justice
- Nulifer Oral, The South China Sea Arbitral Award: Casting Light on Article 121 of UNCLOS
Challenges to the Liberal World Order
A Call for Papers for the 75th Anniversary Issue of International Organization
David A. Lake, Lisa L. Martin, and Thomas Risse
We invite proposals for papers for a special issue to celebrate the 75th anniversary of International Organization. The deadline is March 15, 2018. We are reaching out broadly to the global International Relations community. Please feel free to forward this call to colleagues who you believe are well suited to contribute to the special issue.
Scope of the Special Issue
IO grew up with and has been deeply engaged in studying what has been called the post-World War II, liberal or Western international order. Liberal elements of the world order include principles such as respect for human rights, democracy, economic freedom, and multilateralism. IO was founded to document and analyze the United Nations, which stood at the core of the initial vision of a postwar order. The journal broadened its focus empirically and analytically as that order evolved into an open world economy composed of multiple international regimes that helped produce unprecedented peace and prosperity. IO further expanded its purview as the liberal international order spawned a global civil society and heterogeneous forms of governance.
Today, the international order faces new challenges, both inside its Western core and outside it. Driven in part by rising economic inequality, populism and economic nationalism in the United States and Europe threaten support for the free movement of goods, capital, and people across international borders, as well as multilateralism and multilateral institutions more generally. Brexit both reflects unease with the European Union and challenges the union itself by the defection of one of its major members. Parts of the international order that never bought into liberal principles, or that were never allowed to participate fully in the Western order, offer increasingly prominent alternative organizing principles.
Moreover, the Western triumphalism immediately following the end of the Cold War has been replaced by increasing challenges to core principles and features of the liberal order. Peace and stability are threatened by Russian authoritarianism and revanchism, as in Ukraine, social unrest and civil war in the greater Middle East, terrorism, and the problem of ungoverned spaces more generally. On top of these challenges, the legitimacy of U.S. leadership, multilateralism, and international organizations are increasingly called into question by nationalists and autocratic regimes worried about the loss of sovereignty. The Chinese development model of autocratic state capitalism calls into question the liberal mantra that capitalist development, human rights, and democracy have to go together. Global leadership will be shared by liberal, democratic, capitalist states with countries espousing state-capitalism and autocratic systems. Last not least, on the global level, climate change poses a nearly unprecedented challenge to all nations and the system of global governance, revealing the inadequacy of multilateral institutions in the face of opposition from individual members, as well as highlighting the increasingly prominent role of private regulatory authorities.
The liberal international order has survived past periods of challenge. It may well prove resilient. But current challenges do raise important questions that scholars need to reflect upon and that will shape the agenda of the field of international relations in the decades ahead. The special issue, we hope, will serve to help define that agenda. The role of IO in promoting the study of multilateralism and international governance makes the 75th anniversary of this journal the ideal time to reflect on another round of fundamental challenges to the international order.
We seek papers for the 75th anniversary special issue that are: 1) problem-driven, in the sense that they begin with and focus on current challenges to the liberal international order; 2) theory-driven, with the aim to assess what our theories tell us about the challenges and, importantly, what elements of these challenges are â€œmissedâ€ by our theories; and 3) agenda-setting, not stock-taking papers but efforts to define the research agenda for the future.
A paper on climate change, for instance, might briefly sketch the scope of the problem, familiar to many of us, identify what current theories get right or importantly get wrong about cooperation and governance on climate change, and how theory must change to capture more accurately or fully the challenge. We imagine each paper will take up a different challenge, defined by the author, and we will seek to address a broad array of issues. The editorial team will provide an introduction to the volume as a way to emphasize the holistic nature of this issue.
We hope to include papers from authors outside the usual IO community who can reflect on the field of international relations in general, ideally identifying blind spots that have prevented us from anticipating or fully understanding current challenges. In this context, we would particularly encourage submissions by authors from other disciplines (e.g. economics, sociology, law, social anthropology, geography) and from outside North America and Europe. Our goal is to incentivize authors to write papers that otherwise would not be written. We welcome coauthored submissions. Understanding challenges to the liberal order requires that we better understand parts of the world, or issue-areas, that were never fully integrated into a liberal framework. Thus, we also envision including one or more contributions that focus on alternative visions of world order.
Scholars interested in writing a paper for the anniversary issue should submit a short precis of no more than three pages by March 15, 2018. Each precis should identify the problem or issue to be addressed, what theories and approaches will be reviewed, and the vision of a future research agenda. From these extended abstracts, we will invite authors to develop longer memos, which will then be discussed at an initial workshop in September 2018 at UC San Diego. After the workshop, a limited and select number of authors will be invited to develop full papers for presentation at a conference tentatively scheduled for June 2019 at the Freie UniversitÃ¤t Berlin.
After the Berlin conference, papers will be selected for revision and submission as part of the special issue to IO and undergo the usual review process for special issues.
Interested authors should be aware that at no stage of this selection process is there a guarantee that any paper will progress to the next stage. The IO editorial team also reserves the right to demand revisions and to reject papers based on peer reviews. Accepted papers would go into production in Fall 2020 to appear in Volume 75, sometime in 2021.
Paper proposals should be submitted here.
Winter 2018: Call for papers
March 15, 2018: Submission deadline for precis
Sept. 2018: First authors’ workshop in San Diego (based on extended memos)
June 2019: Second authors’ workshop in Berlin, Germany (discussion of draft papers)
Fall 2019: Submission of papers to IO for review process
Fall 2020: Accepted papers in production for special issue per IO vol. 75, 2021
David A. Lake (UC San Diego)
Lisa L. Martin (University of Wisconsin)
Thomas Risse (Freie Universität)
- Kirsten Schmalenbach, A Game of Powers
- Rossana Deplano, Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues
- Sufyan Droubi, Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations
- Konstantinos D Magliveras, Substituting International Criminal Justice for an African Criminal Justice?
- Emanuele Cimiotta, ‘Triangular’ Relationships between the United Nations and African Regional and Sub-regional Organizations in Maintaining Peace
- Adrien Schifano, Distribution of Power within International Organizations
- Helmut Tichy & Catherine Quidenus, Consolidating the International Legal Personality of the OSCE: A Headquarters Agreement with Austria
- Jasna Arsić-Đapo, Another Brick in the Wall: Building up the OSCE as an International Organization One Agreement at a Time
The 2018 Research Forum addresses challenges to the international legal order emanating from dynamics of disengagement from multilateral governance, a perceived erosion of support by states and other stakeholders in existing international institutions, contestation of universal values, shifts in hegemonic power at the global and regional level, and the rise in populist, antiliberal, anti-institutional and isolationist political sentiments in various regions of the world. Such processes occur in tandem with growing concerns about the suitability of the existing international legal structures and approaches to address global phenomena such as migration, cyber-security threats and climate change, and to influence the conduct of non-state actors such as corporations. It is the combination of the ‘re-emergence of the state’ from out of the shadows of multilateralism and international governance, a growing discontent and backlash from multiple sectors of society directed against existing international norms and institutions and the limited ability of the latter to address serious contemporary problems, which generate a sense of crisis and a possible plunge towards world disorder (Although, it may also be claimed that the current state of affairs creates new opportunities for introducing much needed reforms in international law).
Complexity thinking underscores that, while international law must provide stability to interactions around global climate change, it must also be flexible and highly adaptable. But what are the implications of this functional imperative for the international rule of law? The emergence and evolution of the UN climate regime lends itself to exploring the trajectory of international law in its encounter with complexity. For present purposes, the perhaps most significant trend in international environmental law-making has been the rise of a spectrum of more or less formal amendment processes, and of various modes of informal standard-setting under the auspices of multilateral environmental agreements (MEAs), including the UN Framework Convention on Climate Change (FCCC). Is this rise of informality indicative of a decline of the international rule of law? The paper pursues the argument that the “hard” vs. “soft” law distinction is not the most salient metric when it comes to exploring the trajectory of the international rule of law. It begins by highlighting the main features of climate change as a complex policy challenge. Next, drawing on the interactional account of international law developed elsewhere by Brunnée and Toope, it identifies key traits of legality and the rule of law in the international context. It then explores the evolution of customary, “soft” and treaty-based international environmental law. It focuses primarily on how treaty-based law has evolved to grapple with complexity on the one hand, and with meeting the demands of the rule of law on the other. The 2015 Paris Agreement, adopted under the auspices of the FCCC and employing an unprecedented range of legal “modes,” provides an excellent opportunity to reflect on this question.