Call for Papers: Beyond State Consent to International Jurisdiction – From Courts to Law

As the research project State Consent to International Jurisdiction comes to an end, we invite paper proposals that scrutinise State consent to international law more broadly. The submission deadline is 25 August and the tentative workshop dates are 29 - 30 September (online). 

Illustration photo of a scale of justice and a hammer

Illustration photo: Colourbox.com

 

Organising Committee: Prof. dr. Freya Baetens, Dr. Emma Brandon and Dr. Nicola Strain

Organised in cooperation with the ASIL Interest Group on International Courts and Tribunals

 

The well-functioning of international law depends at least in part on the operation of adjudicatory mechanisms to settle disputes. These in turn depend on whether States are willing to give an 'external force', such as an international court or tribunal, the power to judge whether they have complied with their obligations. In legal terms, the question is one of 'State consent to international jurisdiction'. After the increase and expansion of international adjudicatory mechanisms in recent decades, States now seem to be restricting the scope of their consent (e.g., investment arbitration) or even withdrawing it altogether (e.g., from the International Criminal Court and the European Court of Human Rights). States often justify such restrictions by allegations that these courts are unduly limiting State sovereignty.

The State Consent to International Jurisdiction (SCIJ) project (funded by the Research Council of Norway) was conducted from 2018 to 2022 by a team of researchers at the PluriCourts Centre (Oslo University) consisting of Prof. dr. Freya Baetens (principal investigator), Dr. Emma Brandon and Dr. Nicola Strain. The fundamental tension examined in this project was that, on the one hand, States presumably wish to maintain ‘manoeuvring space’ to avoid being sued before an international court, while on the other hand, they presumably wish to restrict the behaviour of other States by ensuring that international rules can be enforced through an adjudicatory system.

As such, the SCIJ project provided an up-to-date analysis of how international law accommodates this fundamental tension by regulating when, how and with which legal consequences States confer, modify or terminate their consent to the jurisdiction of an international court or tribunal. In turn, this enabled the identification of systematic policy patterns and strategies to improve State accountability at the international level.

Goals

The aim of this conference is to investigate how the research findings of the SCIJ project could be extrapolated to scrutinise State consent to international law more broadly. In this context, the conference will consider the following (non-exhaustive) list of issues:

  • Jurisdiction as opposed to applicable law:

    • Are the dynamics and mechanisms of consenting to the jurisdiction of an international court or tribunal fundamentally different from those of consent to new international rules?

    • What is the interplay (if any) between consent to jurisdiction and consent to procedural or substantive law?

    • Can a backlash against both existing and new international rules be discerned, similar to the one against international courts and tribunals?

  • Jurisdiction, applicable law and interpreting consent:

    • Are the dynamics and methods of interpreting consent to jurisdiction evolving in international courts? Can a similar evolution be seen with regard to consent to international procedural or substantive rules?

    • For example, are reservations to jurisdiction interpreted differently from reservations to international rights and obligations?

    • Are other factors relevant in interpreting the ‘manoeuvring space’ left by States in their consent to jurisdiction and international law? For example, do we need to consider the identities of adjudicators who will be interpreting these rules?

  • Cooperation and State consent to jurisdiction and international law:

    • What are the potential impacts that States’ or international organisations’ cooperation (and the lack thereof) with international courts and tribunals can have on State consent to jurisdiction and international law?

    • What are the potential ways in which cooperation can serve as a practical indication of (and potentially provide modification to) the jurisdiction and legal rules that States have consented to?

    • What role in particular is played by the oversight mechanisms such as the UN General Assembly (for the International Court of Justice), the Council of Europe (for the European Court of Human Rights), etc.?

  • Unique aspects of the specific courts that impact States’ willingness to consent not only to jurisdiction but also to relevant law?

    • For the ICC, such aspects might include: the Court's independent prosecutor, the individual nature of the sanctions it imposes, the dual criminal/international nature of the Court, etc. Do these aspects make it more or less likely for States to consent to international criminal obligations? Under what circumstances?

    • For the regional human rights courts, such aspects might include: the need to exhaust local remedies, the possibility of both inter-State and individual-State litigation, etc. Do these aspects make it more or less likely for States to consent to international human rights obligations? Under what circumstances?

    • For investment arbitration, such aspects might include: the absence of a requirement to exhaust local remedies, the possibility of both inter-State and individual-State litigation, etc. Do these aspects make it more or less likely for States to consent to international investment obligations? Under what circumstances?

    • For the WTO Dispute Settlement Body, such aspects might include: the availability of an appeal mechanism, the lack of retroactive remedies, the absence of compensation for damage sustained, etc. Do these aspects make it more or less likely for States to consent to WTO obligations? Under what circumstances?

  •  (Re)designing consent and international law reform?

    • Can the backlash against international courts and law, as well as increased unilateralism, be resolved through modification of consent rules?

    • For the WTO, should consent issues be part of the discussions on reforming the Appellate Body and the future of dispute settlement and law-making more broadly?

    • For investment arbitration, will a Multilateral Investment Court or a standing appellate body address consent to and criticism of international investment law?

    • For the ICC and regional human rights courts, will more States join and/or fewer States withdraw

This is not an exhaustive list, applicants are welcome to submit abstracts analysing other challenges and best practices in consent to international jurisdiction and law more broadly.

Submission of paper proposals

The Organising Committee (consisting of Prof. dr. Freya Baetens, Dr Emma Brandon and Dr Nicola Strain) welcomes abstracts from academics as well as practitioners, including staff of adjudicatory institutions and international organisations. Papers should present innovative ideas, be unpublished at the moment of presentation, and be at an advanced stage of completion.

 

Submission of proposals

Proposals should consist of:

  1. An anonymized abstract (not exceeding 3.000 characters, incl. spaces)

  2. A brief bio (not exceeding 1.500 characters, incl. spaces; including the author’s current affiliation(s), contact details and most important/relevant publications)

Up to two abstracts per author will be considered, but each author will be invited to present one paper at most.

Timeline

The deadline for submission of abstracts is 25 August 2022.

All applicants will be informed of the outcome of the selection process by 27 August 2022.

The deadline for submission of a three-page outline is 25 September 2022.

The workshop has been tentatively scheduled for 29 and 30 September 2022.

The deadline for submission of the final draft of the paper is 31 December 2022.

Publication

The conference organisers intend to publish a selection of papers in an edited collection or a special journal issue.

Published July 5, 2022 9:34 AM - Last modified July 13, 2022 9:04 AM