Investment protection treaties generally provide for the obligation to treat investments fairly and equitably, even if the wording of the rule and its relationship with the customary international standard may differ. The open-textured nature of the rule, the ambiguous relationship between the vague treaty and equally vague customary rules, and States' interpretations of the content and relationship of both rules (not to mention the frequency of successful invocation by investors) make this issue one of the most controversial aspects of investment protection law. This monograph engages in a comprehensive analysis of the relationship between the international minimum standard and fair and equitable treatment. It provides an original argument about the historical development of the international standard, a normative rationale for reading it into the treaty rules of fair and equitable treatment, and a coherent methodology for establishing the content of this standard. The first part of this book untangles the history of both the international minimum standard and fair and equitable treatment. The second part addresses the normative framework within which the contemporary debate takes place. After an exhaustive review of all relevant sources, it is argued that the most persuasive reading of fair and equitable treatment is that it always makes a reference to customary law. The third part of the book builds on the historical analysis and the normative framework, explaining the content of the contemporary standard by careful comparative human rights analysis.
The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility.
Casablanca opens with a shot of a revolving globe. 1 The intention, as the producer of the movie explained, was 'to have a spinning globe-an unusual, interesting shot, sketchily lighted', 'immediately preceding the montage of the refugees'. 2 Before the camera zooms in to the refugee trail starting in Paris, it shows the political map of Europe, which-as a careful eye might spot-also includes the boundaries of Estonia, Latvia, and Lithuania. Baltic States do not play a major (or indeed any) role in the movie, but a watcher familiar with the history of international relations might pause and wonder about the cartographic solution. The demarcated presence of the three Baltic States on the world map of December 1941-when the story of Casablanca unfolds-is not an obvious choice. These States had been effectively annexed by the Soviet Union in 1940, 3 and in 1941 were under the effective control of the German Reich. Why, then, are they still on the map? An international lawyer, if one were available to discuss the pedantic minutiae, would likely explain the presence of the Baltic States as an application of the more general proposition that illegal annexation does not affect the existence of the State under international law 4 (or, to
The current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.
[martins.paparinskis@ law.ox.ac.uk]. The subtlety and erudition of the anonymous reviewers is much appreciated. 1 V. Lowe, 'The Politics of Law-Making', in M. Byers (ed.
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