Ideas: programmes and projects
The Edinburgh Centre for International and Global Law is a focal point for a diverse, eclectic, inter-disciplinary and well-rounded approach to the study of international law and global governance in all its contemporary dimensions.
We connect our ideas, scholarship and projects to the pressing legal, social, economic and political challenges of our epoch, and endeavour to shape thinking about these challenges through our networks of knowledge, scholarship and academic exchange.
Professor Nehal Bhuta
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 also 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.
Dr Kasey McCall-Smith
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 she published this year looking at the incorporation of children's rights, her 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.
Dr Filippo Fontanelli
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. Filippo Fontanelli's 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.
Professor Andrew Lang
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.
Dr James Harrison
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. James Harrison is carrying out this work in collaboration with the Sustainable Inshore Fisheries Trust and is 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. James Harrison's long term plans are to broaden this research to look at fisheries governance more generally, with a particular focus on the North-East Atlantic.
Dr Rebecca Sutton
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.
Dr Ana Maria Daza Varga
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.
Dr Michelle Burgis-Kasthala
Michelle Burgis-Kasthala’sproject, 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, she has written two articles on this, both of which are under review. In the future, she plans 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 her sustained interest and expertise 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.
Professor Stephen Neff
Stephen Neff's 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, Stephen Neff is 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.
Artificial Intelligence and the International Rule of Law
The Artificial Intelligence and the International Rule of Law Workshop Series aims to explore fundamental questions about the relationship between international legal obligations and emerging applications of artificial intelligence (AI) that bear upon key domains of international law: the laws of war, human rights and refugee law.
The challenges of AI are an ever-present subject of debate and discussion, and the public are presented with a constant refrain that AI will change everything. In actuality, current real-world AI development and application is particularly tangible and visible in one domain: the delegation of decisions by public authorities (national and international) to AI systems.
The workshop series will explore these processes within three specific domains: AI and battlefield decision-making under the laws of war; AI and the digitalisation of welfare policy; and AI and refugee determination and border control. These three domains of real-world AI application by public powers raise fundamental questions about the rule of international law in the creation, use and responsibility for AI systems to which law-governed decisions have been partially or fully delegated.
Each workshop will develop a case study based on an existing technology or in-development platform, and engage with policy-makers, computer scientists, technologists, industry representatives and individuals working at the cutting-edge of developing and using these systems.
Incorporating Human Rights in Scotland
The First Minister of Scotland has committed to incorporating international children’s rights into domestic law, and the Advisory Group on Human Rights Leadership has further recommended that Scotland should incorporate all human rights treaties. Recent research shows that incorporation is complex and that civil society groups are often confused by how incorporation can be done and what it can achieve in practice.
Dr Kasey McCall-Smith is working with key partners (Human Rights Consortium Scotland, Amnesty Scotland and Together) to develop a framework for best practice on incorporation, ensuring that civil society organisations have the information and training they need in order to influence key decision-makers.
The Faces of Human Rights
The Faces of Human Rights was conceived both as a celebration of the UDHR and a tribute to those individuals who laid the groundwork for that document and, more generally, developed our current conceptions of human rights through their various distinguished contributions to the field: as academics, civil servants, civil society activists, judges, lawmakers, philosophers, politicians, and so on.
Through these pages, we seek to recall the reasons why human rights are so essential to the post-Second World War peace and how the flame that is human dignity continues to burn and move individuals to act in its pursuit. It is through this reflection that we recall that behind the UDHR, the many additional human rights treaties, the bureaucracy, the struggle and the heartbreak are the people who have fought to maintain the inherent self-worth and freedoms of every human, and continue to do so, one cause, one speech, one article, one conversation, one kind word at a time.
These chapters also serve as a witness to the many varied ways in which each person can contribute to the recognition of human dignity, from small actions close to home to grand interjections into the international framework. While everyone chooses to interpret the actions and contributions of the individuals we celebrate here, it is our utmost hope that our underlying concept is conveyed: at the heart of human rights are humans, and we all have a role to play in fulfilling the promise of a future where dignity is at the core of all action.
The Politics of International Criminal Justice after the Arab Uprisings
Dr Michelle Burgis-Kasthala will be commencing a three-year Australian Research Council funded grant at the end of September 2014. During the project, she will be based at the Regulatory Institutions Network at the Australian National University. Her project is titled, 'The Politics of International Criminal Justice after the Arab Uprisings' and it will interrogate how international criminal law can reshape state-society relations in periods of transition after conflict or repressive rule. Since late 2011 socio-political and legal change has swept across the Middle East and North Africa, requiring us to understand the role that various forms of national and international law can play for redressing past wrongs. By conducting fieldwork in the region to carry out interviews with lawyers, judges and members of civil society in Libya,Palestine and Syria, this project seeks to understand the nature of the emerging Arab state and how it is shaped by international law and notions of individual criminal responsibility.
Torture on Trial
Dr Kasey McCall-Smith has spend the past three years examining he international and human rights law issues relating to Guantánamo Bay detention operations and military commissions. US detention operations at Guantánamo Bay present a vivid example of the manipulation of international law in an effort to root out terrorists. The 2014 Senate Torture Report confirmed that many men detained in Guantánamo 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 Guantánamo where the defendants have been held as suspected terrorists for over ten years. This project will evaluate the legal framework ensuring the complete prohibition against torture in an under-examined trial setting. Specifically, the project will evaluate 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. This project is generously funded by a Royal Society of Edinburgh Arts and Humanities Small Grant. You can read blogs on the preliminary observations here.
The project builds upon a previous project, 'Getting to Grips with Guantánamo' which provided a ‘boots on the ground’ perspective of Guantánamo coupled with an evaluation of US and UK international legal obligations. A primary focus was the military commission proceedings against defendants charged with the planning of the 9/11 attacks on the US and the way in which the issue of torture influenced every aspect of the trial. Parts of the project were funded by the CAHSS/ESRC through an Impact Grant. Preliminary observations can be read here in addition to the public facing news article 'Inside notorious Guantanamo' in The Scotsman from January 2017.