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FRIHUMSAM-Fri prosj.st. hum og sam

State Consent to International Jurisdiction: Conferral, Modification and Termination

Alternative title: Staters samtykke til internasjonale domstoler: aksept, endring og opphør

Awarded: NOK 8.1 mill.

The project started in 2018, when two PhD fellows were hired. Emma Brandon would focus on the International Criminal Court (ICC) and the three regional human rights courts. Nicola Strain would be dealing with the World Trade Organization (WTO) dispute settlement body and investor-State dispute settlement mechanisms (ISDS). In 2019, the Principal Investigator (PI) completed the first phase of the data collection with regard to the International Court of Justice (ICJ), namely, the compulsory jurisdiction declarations submitted under Article 36(2) of the ICJ Statute. She then drafted a paper on state consent to ICJ jurisdiction and a second paper on the WTO appellate system. Next, she compiled an overview of the treaties that refer States Parties to the ICJ by means of 'compromissory clauses'. The team received feedback at an expert workshop co-organised with the Geneva Centre for International Dispute Settlement. Both PhD fellows conducted research stays abroad: Brandon at Cambridge University and Strain at the Graduate Institute in Geneva. In terms of dissemination, Brandon published the paper 'Grave Breaches and Justifications: The War Crime of Forcible Transfer or Deportation of Civilians and the Exception for Evacuations for Imperative Military Reasons'. Strain presented a paper on jurisdiction and applicable law in international economic disputes at a Society of International Economic Law's (SIEL) conference. The PI presented her paper 'High-jacking anticipated, prevented and overcome: how to safeguard the WTO appellate System and beyond' at the European Society of International Law's (ESIL) annual conference. In 2020, the PI finalized the second phase of ICJ data collection. She also commenced the analysis of consent to dispute settlement under the UN Convention on the Law of the Sea (UNCLOS) and drafted a paper on the tension between international law's aspiration to universality and the unilateral character of consent in the context of regional customary international law. The latter paper was presented at the Université Paris I (Panthéon Sorbonne) and in a series of lectures she gave as a Guest Professor at Université Paris Nanterre. The pandemic disrupted some planned activities of the team: the PI could not conduct her Visiting Professorship in person at the Max Planck Institute for International, European and Regulatory Procedural Law in Luxembourg. Strain could not finish her visiting fellowship at Columbia University in New York. However, Brandon did manage to complete her research stay at Leiden University. The team made a concerted effort to disseminate and discuss their work at virtual conferences and seminars. For example, the PI discussed COVID-19 defences against international trade law claims (Bocconi University), legal and institutional reform of ISDS (Cambridge), model investment treaties (Juris Conference), public health rights vs international trade rules (American University Washington), differences between domestic and international adjudication in terms of diversity (ICON), attribution of conduct of state-owned enterprises (SIEL and NYU) and collective rights in international law-making (ESIL). Strain discussed the intersection of global health law on the COVID-19 crisis and international investment law at a workshop at the University of New South Wales. She also presented a paper at the American Society of International Law's Research Forum. In 2021, she presented papers on consent and systemic integration to the ESIL Interest Group of International Economic Law and the Working Group of Young Scholars in Public International Law (AjV, Germany). Strain also took part in The Hague Academy of International Law's Centre for Research on the topic of 'applicable law issues in international arbitration'. Brandon presented a paper on obligations under the Geneva Conventions to cooperate with the ICC at the Palacký University Faculty of Law. In 2022, Brandon and Strain successfully defended their PhD theses with the titles ‘Cooperation with the International Criminal Court and Regional Human Rights Courts: Obligations of Non-State Parties’ (Brandon) and ‘Jurisdiction and Applicable Law in Investor-State and WTO Dispute Settlement. Comparing Consent and Inconsistency in the Application of Other International Law’ (Strain). The same year, the PI gave a series of lectures as a Guest Professor at the Catholic University of Leuven (Belgium). The team also organized the project’s closing conference on the topic of state consent to international law beyond jurisdiction. The speakers were selected through a call for papers and around 100 participants followed the discussions online. After the conference, the PI started preparing a conference anthology, in addition to the publication of her monograph on state consent to international jurisdiction.

Over the course of the project, the Principal Investigator (PI) and her research team published several major-length academic articles in international peer-reviewed journals (a complete list can be consulted via the Cristin database).The PI is currently also working towards publishing the overall conclusions of the project as a research monograph. Both PhD fellows published their dissertations as research monographs: ‘Cooperation with the International Criminal Court and Regional Human Rights Courts: Obligations of Non-State Parties’ (Brandon) and ‘Jurisdiction and Applicable Law in Investor-State and WTO Dispute Settlement. Comparing Consent and Inconsistency in the Application of Other International Law’ (Strain). The PI has used various information channels to ensure that this output reaches relevant user groups. She arranged four workshops involving academic experts as well as members of international courts, governments and other specialist practitioners to discuss the preliminary conclusions of the research project. This allowed for external input, which was then incorporated during the subsequent stages of the project. Team members also disseminated their research by conducting several extended research stays abroad, including at the Université Paris Nanterre and the Max Planck Institute for International, European and Regulatory Procedural Law (Luxembourg) (PI); the universities of Cambridge (UK) and Leiden (the Netherlands) (Brandon); and the Graduate Institute (Geneva) and Columbia University (New York) (Strain). Separate practical training sessions were organised by the PI targeting the needs of a range of stakeholders such as members of international courts, diplomats, policy-makers, private sector lawyers, officials working for international organisations and national governments, regulators and journalists. These sessions provided a forum for drafting the Best Practices publication summarising and popularising the main scientific findings of the project. The publication is aimed at legal practitioners working for States or international courts and tribunals, which will be distributed, free of charge, in electronic format. The project culminated in a well-attended international conference in September 2022 which aimed at communicating the research findings to the wider scholarly community and interested practitioners. At the conference, insights from the research project on state consent to international jurisdiction were applied to legal issues relating to international law beyond the confines of jurisdiction. The PI is currently reviewing papers for the edited collection in the aftermath of the international closing conference, thus forming a significant building block for further research into the area of state consent in international law.

A stable and predictable system to resolve international disputes is premised on States' willingness to accept that an 'external force', such as an international court or tribunal, has the power to judge whether they have complied with their international obligations. To put this in legal terms, the question is one of: 'State consent to international jurisdiction'. After the sharp rise in the creation of new international courts in recent decades, States are now restricting the scope of their consent or even withdrawing it altogether due to nationalist or populist allegations that international courts are unduly limiting their sovereign powers. The fundamental dichotomy underlying this project is that States wish to maintain the possibility of retreat from the international dispute settlement process while restricting the scope of unpredictable behaviour of other States by enforcing international law through the establishment of international courts. Empirical analysis of a purpose-built database of consent-related documents will allow this project to fulfil the urgent need for an up-to-date detailed analysis of the international law regulating when, how and with which consequences States can confer, modify or terminate consent to jurisdiction. In turn, this will enable the identification of systematic policy patterns. Key challenges include identifying representative trends in States' consent to jurisdiction using examples from selected international courts and accessing non-public information. These challenges will be met through establishing an external review board and soliciting assistance within international courts and States. The project's findings will be of importance to not only international courts but also the myriad of actors that benefit from a stable system of international dispute settlement, including States, civil society, and individuals. They will be disseminated through a variety of scholarly as well as non-scientific deliverables.

Publications from Cristin

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FRIHUMSAM-Fri prosj.st. hum og sam