By Dr Edoardo Stoppioni, Senior Research Fellow (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law).
This post aims at using the work of Gramsci to analyse the hegemonic structures of the discourse of the WTO judge and to disentangle its relation to the neoliberal structural bias of its normative space. The objective is to transpose to international economic law the critical lenses that neo-Gramscian scholars, like Robert Cox, used in international relations. A neo-Gramscian approach focuses on the « material structure of ideology », in order to show how certain norms and practices emerge in a certain context and what is their emancipatory potential concerning a given legal order. By so doing, Cox enlarged the notion of hegemony to include those institutional practices of internalization of a certain ideology and the way they project it externally.
Critical doctrines on international law’s “fragmentation” have demonstrated that certain jurisdictions are capable of exercising hegemonic power in the international legal sphere and that a link should be established in that regard with the peculiar bias of economic jurisdictions, such as the WTO judge and the investment arbitrator. The WTO judge is a perfect example thereof (“judge” as, en passant, I find the judicial nature of the mechanism largely demonstrated and recently reaffirmed). As I previously theorized using Gramscian concepts, its discourse constantly oscillates between two poles. The first pole is the one of “prestige” or hegemony via expansion: the judge uses a language of dissemination; it exercises pedagogy to make its own idiom (the language of trade values) the dominating form of legal expression. The second pole is the one of “economism”, or of hegemony via isolation. The judge prefers using a discourse of self-containment to make its power uncontested. It refuses to listen to a foreign language not to put into danger its domination over its own normative regime. (more…)
By Prof Charlotte Villiers, Professor of Company Law and Corporate Governance (University of Bristol Law School)
The world is now in almost complete lockdown as this Covid-19 public health crisis has reached its ‘boom’ stage for many countries. People are frightened for the health of themselves and their loved ones and the financial security of huge numbers of workers is at risk. In the UK, the front-line workers with the task of treating the sick and caring for them are the care professionals, clinicians and nurses in the NHS. One of the key words that guides the NHS and is embedded within its constitution is ‘compassion’. Principle 3 states that: ‘Respect, dignity, compassion and care should be at the core of how patients and staff are treated not only because that is the right thing to do but because patient safety, experience and outcomes are all improved when staff are valued, empowered and supported.’ In its Values section, the constitution adds: ‘compassion is central to the care we provide and respond with humanity and kindness to each person’s pain, distress, anxiety or need. We search for the things we can do, however small, to give comfort and relieve suffering. We find time for patients, their families and carers, as well as those we work alongside. We do not wait to be asked, because we care.’
It was notable that in recent announcements from our new Chancellor, Rishi Sunak, and Scotland’s First Minister, Nicola Sturgeon, both expressed the need for compassion. Rishi Sunak said: ‘Now more than at any time in our history we will be judged by our capacity for compassion. Our ability to come through this won’t just be down to what government or businesses do but the individual acts of kindness that we show each other.’ Nicola Sturgeon also said ‘This crisis is reminding us just how fragile our world is. But it is also reminding us what really matters – health, love, solidarity. With compassion and kindness – and with the dedication and expertise of our NHS – we can and we will get through this.’ These speeches indicate that our political leaders recognise that compassion is a necessary response to the crisis that we must confront, collectively, as human beings. (more…)
By Dr Lorenzo Cotula, Principal Researcher at the International Institute for Environment and Development; Honorary Professor at the University of Strathclyde.
As our demand for material goods drives natural resource extraction, the law reconfigures control over resources to facilitate the production of tradable commodities. Faced with profound social transformations, indigenous and agrarian movements have mobilised human rights to reclaim land, resources and development pathways. This recourse to rights provides distinctive insights on the place of human rights in social justice struggles.
Resource control and international economic law (IEL)
The growing levels and expectations of material consumption in the rich world rest on the large-scale production of commodities for food, energy and raw materials. The correlative expansion and intensification of natural resource extraction has historically involved large-scale mining, petroleum, logging and agribusiness developments, but also more indirect forms of resource control, for example through the integration of small-scale producers into commercial value chains. (more…)
By Dr. Paolo Vargiu, Lecturer in Law (University of Leicester)
Roland Barthes was never particularly interested in the law. Were he alive today, however, it is hard to imagine that he would be a strong supporter of a regime like investment arbitration – a system which, in spite of its best original intentions, has long been exposed by its critics for the lack of balance in rights and obligations and the abuse of the mechanism to increase the already disproportionate power of multinational corporations vis-à-vis the state where they invest. However, his literary production can nonetheless serve as a model for inquiring on aspects of the investment arbitral regime that remain somehow at the margins of the scholarly critique.
In his essay “Writers, Intellectuals, Teachers” (1971), Barthes theorised an imaginary contract between teachers and students, with specific tasks and expectations brought into the contractual relationship by both parties. Barthes’ teachers are neither mere providers of information nor simply the means used by the school to educate students: instead, they are at once erudite, educators, mentors, instructors and tutors. The term magister may be more appropriate to define Barthes’ teachers for they carry the burden to not only instruct on specific tasks, but also to represent schools of thought, and to act as guides, almost gurus, towards enlightenment, knowledge, and skill. They are vested, in other words, with the duty of developing the community they guide; and, rather than self-conferred, it is a duty given to them by such community. (more…)
By Dr Clair Gammage & Dr Amaka Vanni, For and on behalf of the IEL Collective
In 2019, a group of scholars in the discipline of International Economic Law (IEL) launched the IEL Collective to provide a space for critical reflections of the regulation and conduct of states, international organisations and private actors in economic governance within and across state boundaries. International economic law (IEL) as an arena of scholarship, policy and practice has developed exponentially over the past three decades, evolving from a sub-field of public international law into a multi-layered, highly specialised discipline of its own. As a field of study, IEL encompasses a broad range of issues relating to the law, regulation and governance of the global economy, including trade, investment, finance, intellectual property, business regulation, energy and competition law. It is a discipline that intersects with other disciplines, such as international and domestic labour law, human rights, and environment as recognised by the United Nation’s 2030 Agenda for Sustainable Development. However, in the discipline of IEL there remain significant questions over the plurality and diversity of methodologies, voices and viewpoints. (more…)
By Katherine Tonkiss, Agnes Czajka, Tendayi Bloom, Eleni Andreouli, Devyani Prabhat, Cynthia Orchard, Nira Yuval-Davis, Kelly Staples and Georgie Wemyss.
As the Windrush scandal has shown, when a person is unable to show evidence of their citizenship, the results can be devastating. In August 2019, the think tank British Future launched an independent inquiry into UK citizenship policy, chaired by Alberto Costa MP, inviting experts to submit evidence. In response, one group of academics and NGOs came together to map an agenda for citizenship policy in the UK. This blog summarises some of their recommendations.
Traditionally, UK citizenship has been associated with commitment to and participation in certain political institutions and traditions. More recently, increasing politicisation of immigration and emphasis on ‘national belonging’ have been linked to a shift towards associating the legal status of citizenship with socio-cultural interpretations of ‘integration’ and ‘national belonging’. However, these are ambiguous concepts and lead to different meanings of citizenship for those who are born into it and those who must apply for legal recognition of their citizenship later in life. (more…)
By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)
The killing of the Iranian military strategist Qasem Soleimani at the start of 2020 may not have much, if any, direct effect on terrorism in the UK. But it was always unlikely that threats from jihadis, dissident Irish republicans and the far right would decline significantly as the new decade unfolds. Dealing with these threats must remain a top political priority.
And yet, in spite of the horrific incident in London on 29 November, counter-terrorism did not feature prominently in the campaign for the UK’s 2019 general election, two weeks later. Indeed, neither of the two main parties had much to say about it. (more…)
By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).
Blockchain or, more generally, decentralised ledger technologies (DLTs), are capturing the attention of policymakers. ‘Blockchain’ has become shorthand to refer to technology usually identified with the properties of a decentralised, trustless and immutable (or at least, tamper-proof) mechanism for information verification and recording that can enable self-executing digital transactions between anonymous parties (‘smart contracts’).
Blockchain’s touted tamper-proofness and potential to enable smart contracts are driving initiatives that seek to create automated ‘trust in trustless environments’ for public sector use cases, in particular concerning activities highly-exposed to corruption risks and/or the automation of administrative procedures devoid of discretion.
There are high economic stakes at play in public procurement—which represents around 12% of GDP and over a third of public expenditure in OECD countries, and even higher proportions in other economies. Coupled with the growing (over)reliance of policymakers on business consultants, the hype around blockchain—and, more generally, about public procurement 4.0—is perhaps particularly intense in this field of GovTech and RegTech.
Some legal scholars are rather optimistically jumping on the ‘disruptive technologies bandwagon’ and identifying blockchain as a main tool to increase the probity and efficiency of procurement governance at a national level.1 Some officially-backed ‘visions for the future’ go as far as promising blockchain-supported global e-procurement platforms capable of covering the entirety of procurement transactions carried out worldwide.
This is creating a set of expectations about how blockchain will revolutionise public procurement governance that does not translate into real action. Even further, I submit, blockchain is and will remain structurally inapt to generate such a governance revolution, for several reasons. (more…)
By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)
Two central questions are raised by the horrific knife attack by Usman Khan upon some of those attending a criminal rehabilitation workshop at Fishmonger’s Hall, London Bridge on 29 November: how, if at all, could it have been prevented? And how, if at all, could other similar incidents be averted? While there are, regrettably, no entirely reassuring answers to either question, there are, nevertheless, ones we must be content to live with.
Khan, from Stoke-on-Trent, joined the jihadist movement al-Muhajiroun in 2006 at the age of 15 and was arrested for terrorism in 2010. Two years later he was convicted with several others, of involvement in planning to establish terrorist training camps in Pakistan, and conspiracies to attack several London targets, including the Stock Exchange, the US Embassy, and the home of the then Mayor, Boris Johnson. He was sentenced to an indeterminate term of imprisonment with a recommendation that he spend at least eight years behind bars. This was, however, altered on appeal to a fixed term of 18 years with the standard entitlement to automatic release after half the sentence had been served. Khan is said to have been a model prisoner. By contrast with the majority of his terrorist peers, he willingly cooperated with the available opportunities for deradicalization and rehabilitation. But it is not entirely clear what precisely these involved. It has also been reported that he applied to join a more intensive programme but was unsuccessful. The reasons have not yet been fully disclosed. But it is said that there is a long waiting list. (more…)
By Prof Judy Laing, Professor of Mental Health law, Rights and Policy (University of Bristol Law School)
As the general election approaches and you consider whether to use your vote, spare a thought for the thousands of people who are detained in psychiatric hospitals or living in residential care/nursing homes, and who may not even realise that they are entitled to vote, or be given the opportunity to do so.
Government statistics suggest that there were 21,439 people reported as being subject to compulsory detention under the Mental Health Act 1983 on 31st March 2018, and over three quarters of these people were being detained in hospital in England. The majority of these detained patients have the same right to vote as the general population, but they are one of the most disenfranchised groups in society. Surveys have found that psychiatric in-patient uptake and knowledge of voting rights is generally poor. For example, a study on the general election in 2010 found that eligible psychiatric in-patients were half as likely to register as the general population; half as likely to vote if registered, and patients who had been in hospital for longer periods were particularly affected. Moreover, research also suggests that knowledge of patients’ voting rights amongst mental health professionals could be improved. (more…)