Suchergebnisse

On the surface, the two books under review seem to have little in common. The Bonnitcha/Poulsen/Waibel (BPW) book, written by two legal academics and a political scientist, provides a balanced, fact-grounded account of international investment agreements (IIAs) and investor-state dispute settlement (ISDS). This is the "international treaty regime" in that book's title which the authors argue needs to be distinguished from the broader "international regime complex" that their book explicitly does not address, namely the number of other international instruments that at least incidentally also protect foreign investments (including, for example, political risk insurance, tax treaties, certain World Trade Organization agreements, and certain human rights treaties like the European Convention on Human Rights (ECHR)) (p. 7 and Figure 1.2). As one of the encomiums on its back cover page suggests, the BPW book seeks to answer the fraught competing contentions of defenders and critics of the regime that all too frequently generate "more heat than light." Their book dispassionately synthesizes the available legal, economic, and political literature relevant to understanding the investment treaty regime's oft-proclaimed "legitimacy crisis." It seeks to supply lawyers needing political context and political scientists needing legal knowledge with the unfiltered facts required to assess whether such a "crisis" exists and, if so, what the ways forward might be.

Despite the absence of a comprehensive global pact on the subject, the human right to property protection—a right of property but only rarely to specific property—exists and is recognized in 21 human rights instruments, including some of the most widely ratified multilateral treaties ever adopted. The Cold War's omission of property rights in the two principal treaties on human rights, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has been overtaken by events. But that reality continues to be resisted by legal scholars, including human rights advocates, as well as by many across the political spectrum from many on the left (who associate property rights with misguided "Western" models for economic development) to some on the right (who see it as yet another intrusion on sovereign discretion sought by global elites). It is also resisted by U.S. courts which continue to assert that international law regulates the treatment of foreign property but not of "domestic takings" involving actions directed at a state's own citizens. This Article surveys the reality of internationalized property rights protections outside the usual context in which it is addressed, namely to protect the property of foreign investors in the host states in which they operate. It canvasses the policy and jurisprudential objections to the idea of a treaty-based human right of property, addresses how the U.S. has contributed to the internationalization of this human right, and contrasts the property caselaw of the Inter-American Court of Human Rights with the ways U.S. courts have largely resisted the idea that the international human right of property exists. It addresses how human rights treaties respond to objections to property rights writ large and uses, inter alia, the property rulings of the Inter-American Court of Human Rights to advance a non-instrumentalist defense of the human right to property protection based on "moral intuitions" of what human dignity requires. Finally, the Article defends the fragmented nature of the distinct international regimes that protect property from those who would seek to harmonize its contours either through a global agreement or by recognizing its status as customary law.

The rules international organizations (IOs) make deviate considerably
from the traditional sources of international law in Article 38 of the
International Court of Justice's (ICJ) Statute and the ways those are
understood: as generated, enforced, and interpreted by states based on their
consent. As this panel demonstrates, IO "rules" take various forms—e.g.,
guidelines, recommendations, and standards—and are promulgated by not only
traditional interstate organizations but public/private hybrids,
transnational networks involving agencies inside states, private
associations of industry or other experts, or subsidiary committees of the
parties (COPs) or meetings of the parties (MOPs). These rules enjoy varying
degrees of authoritativeness, often purport to have some impact on state
and non-state actors, and depart, sometimes
quite openly, from reliance on state consent. And even when IOs turn to the
traditional sources—treaties, custom, general principles—these take
untraditional forms that blur distinctions between binding and non-binding
law. Whether these governance efforts are described as systems of "global
administrative law," "global constitutionalism," or "transnational legal
orders" or as new forms of "international public law," they are certainly
different from your grandmother's public international law. Like "soft" law
before it, these governance efforts have drawn the ire of legal positivists
who ask, with some justice, what is meant by "law" if everyone (public,
private, and in-between) is a potential "lawmaker" and no one can be certain
about whether their efforts entail legal responsibility and, if so, for
whom.