Public International Law
The public international law research area is a lively community of critical thinking, legal expertise, and theoretical reflection at Edinburgh Law School.
The research area brings together accomplished scholars and experts bridging a wide span of contemporary international law, including global environmental law, international legal theory, the history of international law, international economic law, human rights, international criminal law, maritime law, and the laws of war.
We offer courses across all these areas, and maintain a busy schedule of public events on contemporary and historical issues in international and global law.
Paul Behrens, Reader in Law
Nehal Bhuta, Chair of Public International Law
Michelle Burgis-Kasthala, Lecturer in Public International Law
Ana Maria Daza Vargas, Lecturer in International Law
Filippo Fontanelli, Senior Lecturer in International Economic Law
James Harrison, Senior Lecturer in International Law
Andrew Lang, Chair in International Law and Global Governance
Kasey McCall-Smith, Lecturer in Public International Law
Stephen Neff, Professor of War and Peace
Let’s disagree to disagree : Relevance as the rule of inter-order recognition.
Fontanelli, Filippo. In: Italian Law Journal, Vol. 4, No. 2, 2, 25.02.2019, p. 315-335. View article
Taking the pulse of environmental and Fisheries Law : The common fisheries policy, the Habitats Directive and Brexit.
Harrison, James; Appleby, Tom. In: Journal of Environmental Law, 27.01.2019. View article
To incorporate the CRC or not – is this really the question?
McCall-Smith, Kasey. In: International Journal of Human Rights , Vol. 23, 16.01.2019. View article
Key challenges relating to the governance of regional fisheries.
Harrison, James. Strengthening International Fisheries Law in an Era of Changing Oceans. ed.
Richard Caddell; Erik Molenaar. 1. ed. Hart Publishing, 2019. p. 79-102. View chapter
From International Law to National Law: The opportunities and limits of contractual CSR supply chain governance.
McCall-Smith, Kasey; Ruhmkorf, Andreas. Law and Responsible Supply Chain Management: Contract and Tort – Interplay and Overlap. ed.
Vibe Ulfbeck; Andrea Horowitz; Katerina Mitkidis. 1. ed. Routledge, 2019. p. 15-45 (Routledge Research in Corporate Law). View chapter
Middle East boundaries and state formation.
Burgis-Kasthala, Michelle. Oxford Bibliographies in International Law. ed.
Tony Carty. Oxford University Press, 2019. View chapter
What should freedom of religion become?
Bhuta, Nehal. Freedom of Religion, Secularism and Human Rights. ed.
Nehal Bhuta. Oxford University Press, 2019. (Collected Courses of the Academy of European Law). View chapter
Nehal Bhuta is developing three workshops on Artificial Intelligence and the Rule of International Law: AI on the Battlefield, AI and the Digital Welfare State, and AI and Border Control. He has assembled an interdisciplinary group from Law, Philosophy, Sociology and Informatics and has applied for a new Carnegie Trust for the Universities of Scotland Workshop Grant. The aim of the workshop is to develop an international research network leading to a major Research Centre grant application addressing the following questions: Can essential global legal rules be “programmed in to AI systems to which decisions are delegated? What is the role of the human in interacting with the AI system? Can we design human-machine interactions in these contexts which improves legality? Can we envisage accountability for errors where the reasoning process of the AI System maybe undiscoverable?
Nehal Bhuta undertakes intellectual history research on the history of the concept of the state in international law, and the relationship between various state theories and theories of sovereignty and international order. This connects to an ongoing interest in the production and maintenance of political order at the state and sub-state level, and the various ways in which contemporary international law embeds, reproduces and performs these concepts of ordering, and claims of knowledge about how to produce and maintain these orders.
Michelle Burgis-Kasthala’s project, The Privatisation of International Criminal Justice for Syria and Beyond, builds on extensive interviews and fieldwork conducted with the Commission for International Justice and Accountability and planned interviews with the UN’s Independent, Impartial Investigative Mechanism in June. The project seeks to identify the role of key public and private actors working towards the criminalisation of Syria’s civil war. To date, I have written two articles on this, both of which are under review. In the future, I plan to write specific pieces on the nature of extant archives generated as well as the relationship between international criminal justice and statebuilding. Further into the future, there may be scope for considering the phenomenon of privatised international criminal justice more broadly through a number of case studies.
Michelle Burgis-Kasthala’s future project, Building a State in Palestine through International Criminal Law?, builds on a sustained interest and expertise of mine in Palestine as well as a range of preliminary interviews and fieldwork. The project seeks to place Palestine’s current reliance on international criminal law within broader practices of statebuilding and various legal interventions.
Filippo Fontanelli’s current research concerns the EU Charter’s Application to National Measures.
The Charter applies to national measures implementing EU law, and thus can serve as standard of review for their legality. In the ten years since the Lisbon Treaty came into force, this scenario has never arisen. The Charter has been used, occasionally, to declare the unlawfulness only of domestic measures that also violated other rules of EU law. Arguably, for all the lip-service to the member states’ responsibility to observe human rights when they act as agents of the EU, the Court of Justice has been upholding a tacit pact. The Charter shall not be used to restrict member states’ action, and the mechanism of Art. 51 is effectively an empty promise.
Filippo Fontanelli is also working on two other projects:
Jurisdiction and Admissibility in Investment Arbitration – a New Framework. In investment arbitration, the line between jurisdiction and admissibility is blurred. Objections going to the tribunal’s power or the claim’s inadmissibility are hard to distinguish. My work seeks to show, through a theoretical reconstruction of the two notions, the correct test that tribunals should use to tell them apart. More importantly, it shows the practical implications of the distinction, demystifying some received views that often go unchallenged.
Can the fictio of EU law as fact save the EU from isolation? This research chronicles and assesses how the fictio of treating law as fact has come back into style to keep EU law from isolating itself. The thread of Opinion 1/91, Mox Plant, Opinion 1/09, Opinion 2/13 and Achmea makes it difficult to come up with any hypothetical scenario in which the Court of Justice of the European Union could allow other judicial bodies to handle EU law. The Advocate General’s views in Opinion 1/17 apparently validate CETA’s drafting tactic to distinguish expressly between law-as-law and law-as-fact, a strategy that might have spared WTO from the CJEU’s wrath. The Withdrawal Agreement (R.I.P.) stayed away from the fictio and foreshadowed a 2/13-like fiasco. This research exposes the nature and function of this device. Arguably, it is more reassuring than necessary, but it might just work.
One of James Harrison’s current projects is called 'Save our Seas through Law (SOS-LAW) – Strengthening the UK legal framework for the Protection of the Marine Environment’ and it is a collaboration with the Community of Arran Seabed Trust, looking at contemporary challenges with MPA governance in Scotland. The research draws upon relevant international law and best practices in order to critically analyse the current Scottish/UK legal framework for MPA designation and management. The project is funded by a College Impact and Knowledge Exchange Grant.
James Harrison’s other main project looks at legal reform of inshore fisheries governance in Scotland. I am carrying out this work in collaboration with the Sustainable Inshore Fisheries Trust and we are developing a case for substantial reform to the current legal framework for managing inshore fisheries. The project has both institutional and a substantive components to it. My longer terms plans are to broaden this research to look at fisheries governance more generally, with a particular focus on the North-East Atlantic.
Andrew Lang works in the field of global regulatory governance, and is currently undertaking a project on the history and evolution of the regulatory policy of the OECD, and its significance in the emergence of regulatory infrastructures for the global economy. This develops his earlier work on the regulatory impacts of international trade and investment law, which remains an important focus. It is also part of a broader strand of research re-thinking the nature and content of ‘neoliberalism’ as a politically diverse set of political practices, frames and habits of thought.
Andrew Lang also has an ongoing project looking at the rise of heterodox capitalisms in the global economic order since the 1990s. The immediate impetus for the project is the current trade tensions between the US and China, which to a significant extent have their roots in the emergence of what has been called ‘Sino-capitalism’, a capitalist form (or combination of forms) which has some familiar aspects from other East Asian economies, and some which are not at all familiar. It is common to describe some of China’s practices and structures as ‘distorting’ global markets, and more generally to use the concept of a ‘market distortion’ to attempt to distinguish legitimate from illegitimate variation in the institutions of market capitalism. This paper elucidates some of the conceptual difficulties associated with that term, and assesses four potential ways in which it may nevertheless become legally and practically functional for this purpose. The claim is that finding a pragmatic legal technique for distinguishing legitimate from illegitimate institutional variation is a necessary (though hardly sufficient) condition for the re-stabilisation of a multilateral trading system.
Kasey McCall Smith’s current research project 'Torture on Trial' examines the legal framework ensuring the complete prohibition against torture in an under-examined trial setting. The 2014 Senate Torture Report confirmed that many men detained in Guantanamo were tortured during the highly controversial US anti-terrorism campaigns. Five of these men are on trial in relation to the 11 September 2001 terrorist attacks on the US in the KSM trial. The military commission tasked with hearing these charges is proceeding in Guantanamo where the defendants have been held under the laws of war as suspected terrorists for over 15 years. Specifically, the project examines whether violations of the rules prohibiting torture impact a trial in real-time. Fundamentally, the project seeks to reaffirm that maintaining the prohibition against torture far outweighs arguments for allowing exceptions to the rule.
Kasey McCall Smith’s next major project aims to develop the terminology and approaches to the incorporation of human rights treaties in national legal systems. Following on from an article I published this year looking at the incorporation of children's rights, my preliminary findings were that there is little common ground upon which a basis for discussion about the incorporation of international law can be framed. A coherent reference framework is necessary in order to better facilitate discussions in various contexts, including political discourse, law and policy development and civil society engagement with government organs.
Rebecca Sutton’s current research investigates implications for the practice and pedagogy of International Humanitarian Law. Two papers are being produced: the first paper explores the conceptualization of civilianness by humanitarian actors who operate in armed conflicts, and the second paper examines the way in which international civilian and military actors learn about international humanitarian law in formal training sessions and in operational settings. This research is based on original fieldwork carried out in South Sudan and at civil-military trainings in Ghana, Sweden, Germany and Italy. Two book chapters have also been produced from this project: one book chapter has been prepared on the role of emotions in the everyday implementation of IHL, and it will form part of a forthcoming handbook on Law and Emotions. The second book chapter has recently been published as part of a Routledge Edited Collection on IHL and Justice. The project builds toward a manuscript on the Civilianness of Humanitarian Actors.
Rebecca Sutton’s future research (pending funding approval) concerns The Everyday Life of International Humanitarian Law. The emotional life and perceptual judgments of those who are expected to enact law in war have long been overlooked. As a consequence, International Humanitarian Law is missing a theory of emotions. This gap has been exposed at the very moment that human-less warfare is becoming a realistic prospect. There is an urgent need to grapple with the human element that is slipping away, and this new research agenda takes up this challenge. It develops the concept of ‘Frontline Land’, a space of encounter in which different conflict zone actors navigate the interplay of law, emotions and perceptions on a daily basis.
Ana Maria Daza Vargas
Ana Maria Daza Varga’s current work is concerned with mapping conflict around water resources in investor-state dispute settlement: Creating a database of all water-related investor-state arbitration disputes (ongoing) – classification under a typology of water usage and allocation. The typology divides investment disputes according to the economic activity that may trigger the conflict: trade in water; water services and sanitation; and water for industry. The first output using this database is a paper ‘Water is the new water: Mapping conflict around water resources in investor-state dispute settlement’.
Ana Maria Daza Varga is also writing a paper on the Defense Burden in Investment Treaty Arbitration: An Empirical assessment of Costs, Capacity and Solutions’: Using the database of PITAD (Pluricourts – Oslo University), this paper seeks to: i) identify the costs that respondent states have collectively incurred in defending against investment treaty claims; and ii) determine the state-of-the-art regarding the degrees to which a respondent state’s defense burden in investment treaty arbitration might be considered to actually exist.
Stephen Neff current research projects are two: (1) a book on the history of natural-law thought; and (2) Oversight (as a general editor) of the Cambridge History of International Law. Regarding the Cambridge History, I am also the editor of one of the individual volumes (covering the period 1870-1920), in addition to being on the board of editors for the project as a whole.
Edinburgh Centre for International and Global Law
The Edinburgh Centre for International and Global Law addresses contemporary international and global questions through both fundamental research and practical policy engagement.
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Global Justice Academy
The Global Justice Academy is an interdisciplinary research network at the University of Edinburgh and beyond exploring global justice in its broadest sense.
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