The CJICL has just published Vol. 3(3). All articles of this latest issue can be accessed in the journal archive and will be uploaded to the bookshelf very soon. The following is the editorial of the issue’s editors Naomi Hart and Emma-Louise Bickerstaffe.
Any observer of global events in 2014 would be reminded of the enduring pre-eminence of nation-states as a fundamental organising principle of domestic and international legal orders. This primacy has found expression in the contested territorial status of Crimea, in fresh acts of recognition of Palestine as a state, in the referendum on Scotland’s independence, and even in the savage pursuit of a caliphate by the Islamic State terrorist organisation. These events have demonstrated that citizens continue to look to their states as reflections of their cultural, religious and civic identities. On the international stage, they have thrown into stark relief the abiding significance of states as repositories of legal rights and obligations.
The Third Annual Conference of the CJICL, held on 10–11 May 2014 in the Divinity School of St John’s College at the University of Cambridge, provided a welcome reminder that an exclusive focus on states as legal actors provides an incomplete picture of how the law operates in the twenty-first century. Under the theme of `Stepping away from the State: Universality and Cosmopolitanism in International and Comparative Law’, contributors explored normative and pragmatic reasons to couple state-centric paradigms with approaches that eschew state boundaries. The papers presented at the Conference, a selection of which are published in this edition, devoted attention to legal structures, values and communities that transcend the grid of nation-states.
The Conference opened with a keynote address by Judge Kenneth Keith of the International Court of Justice. His address, reproduced as the first article in this volume, explores institutions—many predating states—that provide a counterpoint to states in terms of how legal systems and obligations are structured. He contends that numerous organisations view states as inapposite vehicles for achieving their objectives and so deliberately operate `away from the state’.
The articles in this edition explore numerous ways in which international and comparative law have sidestepped or superseded state boundaries, and have been divided into subsections accordingly. The first concerns the recent developments in international organisations and courts in developing laws outside of national strictures. Elisabetta Morlino explores whether the procurement practices of international organisations have given rise to a global public law that applies to private actors irrespective of their nationality and location. Michelle Grando analyses whether decisions of courts and tribunals have led to an international law of privilege when it comes to the admission of certain items of evidence. In his contribution, Jed Odermatt analyses the practice of the Court of Justice of the European Union in terms of incorporating international law into its judgments. He argues that the Court’s mixed record shows at least a tentative willingness to impose legal interpretations of a universalist bent, displacing the privilege historically accorded to interpretations that are consistent with European Union member states’ laws. Finally, Merryl Lawry-White conducts a broad survey of international bodies implementing international human rights, criminal and investment law. She demonstrates the contributions of these bodies in forging a universal approach to awarding reparation for moral damage.
The second section of this issue concerns comparative and cosmopolitan perspectives on the law. In this connection, Jason Rudall offers an insight into the theoretical dimensions of cosmopolitanism and the methodology by which scholars may frame a workable definition of the concept. This piece incorporates both historical and interdisciplinary perspectives and advocates greater precision in conceptualising cosmopolitanism. In turn, Caterina Sganga points to the appearance of cosmopolitan influences in property law. She argues, however, that this area of law, closely associated with sovereignty and control over resources, is singularly resilient to cross-border trends and structures. The final paper in this section, by Siyi Huang, argues that approaching comparative law through a cosmopolitan lens will help eliminate subjective value judgments and facilitate a `deep understanding’ of foreign legal systems that is so crucial to comparative endeavours.
The issue’s third section concerns one of the most dynamic areas of international law at present: the international investment regime. Practising lawyers Simon Maynard and Manish Aggarwal explore two investment disputes involving Argentina. They shed light on the ways in which collective claims undermine the primacy of the state in investment proceedings, including by interpreting states’ consent to mass claims liberally and by showing flexibility in the jurisdictional requirements for such claims, favouring claimants over state respondents. In his contribution, Prabhash Ranjan considers whether proportionality, a concept borrowed from transnational public law, can be legitimately imported into decisions regarding bilateral investment treaties, especially given the important textual and contextual differences between investment and other categories of disputes.
The final category of papers concerns rights enshrined in domestic and international law. Nino Guruli’s piece explores the circumstances under which governments may strip individuals of their citizenship, a keystone right in domestic legal orders. Using case studies of the United States and the United Kingdom, she addresses the primacy accorded to state interests in citizenship decisions during the War on Terror. Graziella Romeo, in turn, argues that cosmopolitanism has led to a pattern of recognising and enforcing the rights that states owe to individuals irrespective of their citizenship. Finally, Jason Mazzone scrutinises the mixed blessing of human rights being defined in universal terms, especially the potential for a dilution of protection standards based on comparisons with foreign jurisdictions.
In his Closing Remarks at the Conference, published as the final piece in this issue, Professor John Bell comments on the ubiquity of cross-national approaches in modern legal scholarship. Using the case study of judges citing decisions from foreign jurisdictions, he advocates research methodologies that realistically balance cosmopolitan and universalist patterns and preferences against a recognition of the enduring centrality of states in defining legal orders.
It remains only to express our gratitude to the many people without whom the conference and this edition could not have materialised. Our conference team, comprising Maximillian Evans, Stephanie Forte, Angelika Bialowas and Miriam Boxberg, worked assiduously in bringing the conference to fruition. The CJICL Editors-in-Chief, Cameron Miles, Daniel Clarry and Valentin Jeutner, provided essential support throughout all stages of the conference planning and, alongside the Editorial Board, in preparing this volume for publication. We are grateful for the support of the many members of the Cambridge Faculty of Law who chaired panels and reviewed papers, and particularly to Professors James Crawford, Christine Gray, David Feldman and John Bell for their invaluable assistance. More than 40 speakers contributed to the conference, and our especial thanks go to our Guest Speakers, Judge Angelika Nussberger, Lord Kerr and Dexter Dias QC. The conference also would not have been possible without the support of St John’s College and our sponsors, the Whewell Trust, Hart Publishing and Cambridge University Press.