On Investment Law and Questions of Change

This article analyses the various ways in which investment law raises questions of change. It distinguishes between changes in international investment norms, and changes in a host state’s regulatory system which is subject to the control of such norms, and explains how these different manifestations of change relate to the distinct yet interrelated issues of interpretation and application. The article explains why, given features of the contemporary investment regime, on questions of interpretation, concerning the content of international investment norms, arbitrators operate within wider processes of law-development over which states, as treaty masters, also exercise significant influence. In contrast, arbitrators dominate the process of applying international investment norms to particular investor-state disputes to determine whether changes in a host state’s regulatory system breach applicable investment norms. This claim is demonstrated in relation to the two most prominent investment treaty standards: fair and equitable treatment, and the protection against indirect expropriation

International Migration, Transfers of Norms and Home Country Fertility

This paper examines the relationship between international migration and source country fertility. The impact of international migration on source country fertility may have a number of causes, including a transfer of destination countries’ fertility norms and an incentive to acquire more education. We provide a rigorous test of the diffusion of fertility norms using original and detailed data on migration. Our results provide evidence of a strong transfer of fertility norms from migrants to their country of origin.international migration, endogenous fertility, human capital, social norms

Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of Public International Law

One of the most pressing topics in current international law is fragmentation. Traditionally, most constructive attempts to deal with fragmentation have been based on analogies what one of us, in an earlier book, called conflicts of norms - those rules in domestic law that deal with conflicts of norms within one legal system. In this article, we assess under what circumstances a different approach, based on an analogy to conflict of laws - those rules in domestic law that deal with conflicts of norms between different legal systems - yields a more adequate structure. The result is that public international law conflicts are likely sui generis, with aspects of both conflict of norms and conflict of laws, and that to resolve this type of conflicts one can learn and borrow from both approaches. All through this article, we do not offer a systematic analysis, but rather a number of examples to demonstrate the existence, and usefulness, of two very different sets of conflict rules. Authors\u27 manuscript available here

The Role of Consent and Uncertainty in the Formation of Customary International Law

While treaty norms only bind states that have explicitly consented to a treaty, the case is less clear with customary international law. According to the prevailing opinion in international law scholarship, states are not bound by a customary norm if they have persistently objected to the formation of the norm. This contribution will show that the concept of persistent objection cannot be consistently applied to all areas of international law. It proposes a classification of three different types of norms – norms protecting a common good, norms of coordination and norms related to ethical values. In each of these three fields, the considerations for whether states can be bound against their expressed will differ. In the case of common goods, state consent is perceived as an epistemological tool in order to cope with uncertainty. Dissent is, therefore, no compelling reason for a state not to be bound by a specific norm. Norms of coordination basically protect the expectations of other states, so that only such states are bound that do not explicitly object. The most difficult case is ethical norms, where states have a margin of discretion in balancing competing rights and interests, but cannot inhibit the validity of the norm through individual objection.

Rational Choice or Deliberation? – Customary International Law between Coordination and Constitutionalization

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.-

Transnational Corporations and Developing Public International Law

In recent years the international community has been developing various international codes of conduct, many of which will contain rules governing the behavior of transnational corporations (TNCs). Most of these rules are being developed with little or no direct TNC participation. Professor Charney argues that because TNCs represent major, independent centers of influence, failure to include them in the codes of conduct negotiations may result in rules that do not accurately reflect the realities of TNC interests and power. If the international community later seeks to convert these rules into legal norms, TNC resistance will probably place costly strains on both the rules and the entire international legal system. Professor Charney concludes that the international community should permit TNCs and other interested power groups to participate directly in the development of international norms applicable to their interests. But he cautions that it would be unwise to give TNCs complete international legal personality because this, too, might place undue strains on the international legal system

International migration, transfers of norms and home country fertility

This paper examines the relationship between international migration and source country fertility. The impact of international migration on source country fertility may have a number of causes, including a transfer of destination countries'fertility norms and an incentive to acquire more education. It provides provide a rigorous test of the diffusion on of fertility norms using original and detailed data on migration. The results provide evidence of a significant transfer of fertility norms from migrants to their country of origin: a one percent decrease in the fertility norm to which migrants are exposed reduces home country fertility by about 0.3 percent for origin countries.Population Policies,Gender and Social Development,Reproductive Health,Human Migrations&Resettlements,Anthropology

Concentration for norms of infinitely divisible vectors with independent components

We obtain dimension-free concentration inequalities for $\ell^p$-norms, $p\geq2$, of infinitely divisible random vectors with independent coordinates and finite exponential moments. Besides such norms, the methods and results extend to some other classes of Lipschitz functions.Comment: Published in at http://dx.doi.org/10.3150/08-BEJ131 the Bernoulli (http://isi.cbs.nl/bernoulli/) by the International Statistical Institute/Bernoulli Society (http://isi.cbs.nl/BS/bshome.htm

Chinese hydropower companies and environmental norms in countries of the global South: the involvement of Sinohydro in Ghana’s Bui Dam

The paper examines the role of environmental norms in Chinese overseas investment in hydropower dams, exemplified by Sinohydro’s involvement in the Bui Dam in Ghana. While the investment of Western companies in hydropower dams in the global South is decreasing owing to changing notions of sustainability in the West, the investment of Chinese companies in hydro dams in Africa, Southeast Asia and Latin America is accelerating at great speed. The emergence of Chinese companies in international markets in the context of China’s Going Abroad strategy has sparked a debate on whether China can be considered a norm-changer in international development. The paper considers this question in the context of the status of environmental norms in Sinohydro’s investment in Ghana’s Bui Dam. The paper argues that the role of international norms in Chinese investment is dependent on two factors: the contractual arrangements under which Chinese companies operate abroad and the political institutions of host countries

Determining hierarchy between conflicting treaties: are there vertical rules in the horizontal system?

Treaties are contractual instruments that may provide special rules of priority in case they conflict with other treaties. When a treaty does not provide such rules, however, priority is determined by the rules of the Vienna Convention on the Law of Treaties (VCLT) and/or general principles of law. This article argues that both the VCLT and general principles of law do not provide an adequate solution to treaty conflicts. It suggests that the solution to treaty conflicts rests in a value-oriented reading of international law and the norms incorporated in treaties. Norms represent values and values represent interests or benefits for which international society requires protection. Conflicts of treaty norms are, therefore, conflicts of values that courts and dispute settlement bodies resolve by ordering a hierarchy of competing interests and protecting the most important interests in a given context