In the European Union (EU), the general concept of animal welfare is provided by the Treaty on the Functioning of the EU which considers animals as “sentient beings”. Briefly, animal welfare refers to the state of an animal that is healthy (both physically and emotionally) and has the ability to satisfy its behavioural needs. EU farm animal welfare legislation includes several acts laying down minimum standards for the protection of farm animals. However, these minimum standards fail to guarantee the welfare of farm animals. In contrast, the EU Organic Regulation 2018/848 and the Implementing Regulation 2020/464 provide detailed rules aiming to promote “high animal welfare standards”.
Adopted in 1991, the EU Organic Regulation was most recently revised in 2018, with the changes of this revision entering into force in 2022. One of the most significant updates is the expansion of the scope of the Organic Regulation (i.e., additional species and stages of production). Together with Benjamin Lecorps (Bristol Veterinary School), I have been invited by Alice Di Concetto (The European Institute for Animal Law & Policy) to contribute to a research note on the EU Organic regulations and their impact on animal welfare. This research note draws from my previous work on EU Organic regulations, where I first explored, together with two animal welfare scientists, how these regulations affect dairy cattle welfare[1] as well as other species farmed in the EU.[2]
Animal welfare standards in EU Organic regulations represent a significant improvement compared to the minimum standards. EU Organic regulations aim to provide animals with better protection from negative experiences, limiting pain or suffering induced by routing management practices.
For example, the use of cages and the practice of force-feeding (e.g., used for the production of foie gras) are prohibited in organic systems. Additional requirements aim to ensure animals’ needs are met, beyond the animals’ interest not to suffer. Organic farmers are required to provide their animals with the ability to express natural behaviours or access important resources (e.g., mandatory outdoor access; lower densities).
However, some challenges remain and animals in certified organic production still stand to benefit from further improvements yet to be implemented. On a number of aspects, EU Organic regulations provide exceptions (e.g., physical mutilations; tethering), use vague language or remain silent.
One of the main limitations relates to the lack of emphasis by EU Organic regulations on the welfare of animals during transport. Apart from minor provisions, animals in organic agriculture are subjected to the same rules in the Transport Regulation that apply to non-organically produced animals. However, these rules are limited and there is evidence that they do not guarantee a good level of animal welfare during transport and need to be improved.[3]
If you are interested in knowing more about this research note, you can download it directly from our blog below:
[2] Eugénie Duval, “Le droit de l’Union relatif à l’agriculture biologique : la promotion d’un meilleur bien-être des animaux d’élevage ?”, in Isabelle Michallet (dir.), Bien-être et normes environnementales, Mare et Martin, 2022
[3] I am currently writing a paper comparing live animal transportation regulations in several jurisdictions, highlighting animal welfare challenges and future directions.
This is the second in a set of blog posts in which I discuss the lessons I learned in writing an article that uses a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine modern investment law scholarship. The article is now out in the Journal of World Investment & Trade (JWIT). I reflected on what led me to use CRT to critique international legal scholarship in part 1 and will now discuss my experiences using CRT as a relatively privileged white woman, and the lessons I am taking forward as to what we as an academic community owe racialised CRT scholars.
The Process of ‘Reading Black’
Admittedly, using Bennett Capers’ methodology centres me as the reader. As I acknowledge in the article, Reading Black others’ work is form of exercising power. I, as the reader, place the narratives in the broader context I deem relevant; and I assert, using linguistics and careful textual readings, the (sometimes unintended) implicit racialised narratives that underpin others’ work. If done well (and I’m not claiming here that I have done it well), the Reading Black method advances our scholarly understanding of how linguistics and social understandings embed in legal discourse, allowing the law and legal scholarship to replicate racialised hierarchies.
Unfortunately, my first submitted draft did not do Bennett Capers justice.
The Unpleasant Middle of my Story
By January 2021, I had selected a methodology and a few pieces to Read Black. I had also begun the writing process, outlining my main arguments on paper. In a panic, I speed-read Ntina Tzouvala’s excellent Capitalism as Civilization when I discovered she also uses Capers’ ‘Reading Black’ methodology.
Then, I received numerous, explicit death threats from a White supremacist who declared me a traitor to my race.
People tend to think a death threat is a death threat. Unfortunately, I have long learned to separate ‘death threats’ from Death Threats. I’ve received the former frequently enough, and the latter less so. The ones in January 2021 were Death Threats.
I had to report the threats to campus security and police forces in two countries.
The US police brushed the threats off despite their frequency, graphic nature, and the fact that these threats happened in the same month that White nationalistsattacked the US Capitol building. They told me it was probably an upset student (it wasn’t) and I shouldn’t worry (the Essex police disagreed). I found myself learning how to investigate these kinds of cases and prodding and teaching the US police force how to do their job. This drained my energy.
Because I had received Death Threats before, as a White woman I had assumed that the experience of Death Threats was relatively the same.
I was wrong.
The earlier Threats had a specific trigger so I could plan how to protect myself in advance. To the extent I could control the reality around me, I did. This time, I couldn’t.
There was no specific incident that brought this on. It was my identity – being a White woman who had spoken publicly about racism – that was the trigger. I didn’t know how to respond to that.
Women learn at an early age how to navigate unsafe spaces. The rules are culturally specific, but universally women are forced to consider how we protect ourselves from the ever-present threat of being a woman in society. In the US, we learn to stay away from men whose demeanour raises the hair on our neck. To travel in groups to the bar. To never leave our friends alone. To kindly laugh off and extricate ourselves from unwanted advances. To text our location if we’re going to have dinner at a guy’s house for the first time. We take self-defence classes and don’t drink from glasses we haven’t controlled at all times. We have to do this because society does not respond to our concerns and will generally blame us for being victims of violence.
This time, the hair on my neck was always up. It became difficult to navigate my space and time around (most) White men. I could only relax, truly relax, with a few friends and in private spaces.
I knew I needed help and sought it. I pushed my deadline as far as I could, but I was still in the middle of therapy when I hit the make-or-break submission date. I submitted a draft of something, but it is not the version you will read today.
When I look back at that first draft, I can see the trauma written into it: vacillating somewhat erratically between saying too much, almost saying something, and avoiding saying anything. The draft was sometimes on point but was equally sweeping in claims, unfocused, and unclear. At times, I shied away from analysis, fearful of what could trigger new Threats.
As I wrote, I worried that the next Threat wouldn’t come from a ‘random’ White supremacist but from someone within my field.
I recognise that fear is irrational. Hostile academics wouldn’t explicitly threaten to dismember me; they’d just silently undermine my career by marginalising my scholarship now and in the future (neither the importance of blind peer review nor the politics of citation should be lost here).
But, that isn’t as comforting as you might think. If you’re going to die for being outspoken, you at least want what you say to matter. What if backlash to this article meant my words wouldn’t matter anymore?
In truth, I could only finish even the roughest draft of that article because I had communities around me, in my department, in Business and Human Rights, and in the IEL Collective. But, I wonder how many critical ideas have been self-censored because someone didn’t have that kind of community.
A Privileged Experience
I should be clear as to why I am telling you this: as I was responding to the Threats – and as I write this now – I recognize how privileged I am. It remains rare for me to receive Threats, and rarer still to receive them on the basis of my identity as opposed to something I actively choose to do. Moreover, these threats were somewhat temporarily defined. There was a point at which the threat dissipated.
Even in the worst moments, I knew that would be true.
White supremacists are not routinely targeting me, nor can they tell when I walk down the street that I’m someone they hate. My ‘normal’ existence occurs in the relative security of a woman who has already learned, as all women do implicitly and explicitly, how to navigate unsafe spaces and a world hostile to her independence.
In contrast, I have friends and colleagues who regularly face Threats for their work. Those Threats exist on top of and in addition to the daily assault on their identity and safety that comes from both systemic and individualised racism. That is the real ‘cancel culture.’
I am telling you about my experience because I do not think (White) academia fully appreciates what it means to write CRT generally and cannot conceive of what it means to write CRT as a racialised scholar specifically. CRT theorists, particularly those from racialised backgrounds, are writing significant and challenging contributions to our existing understanding of the law. They are doing this while operating within a space that history, modern news, and likely their own lived experiences tell them they cannot trust or fully relax into. They navigate a society, which includes the academy, hostile to their existence and scholarship. As CRT has become the Scare du Jour, demonized by people who can’t describe it and mischaracterized by those who should know better, the identities of CRT’s founding lights and those who write in this space have become well-known. Which means their lives are at greater risk. Still, they write. And what they write is important, adding to our knowledge and understanding of the law even when we might disagree with their conclusions.
The result of this reality is that we, at least in law, ask a lot more of racialised scholars who write CRT than we do of other scholars. We ask them to preserve, transfer, and add to knowledge whilst enduring threats of violence that we have thus far failed to significantly address. When I look at my first draft, I don’t feel ashamed of how trauma impacted it—trauma by nature is supposed to impact us—but I do realise how much more fragile my capacity for scholarly contribution is compared to those who write CRT regularly, particularly those who do so from a racialised background.
Which returns us to the question that prompted this post:
What do we owe CRT and its Theorists?
My three-prong answer to this question is rather simple and perhaps incomplete: respect, engagement, and security.
Respect: Racialised scholars have long faced an academy that is unwilling to listen to them, to believe their experiences or accept their contributions. That has not changed (in or outside law), and is enhanced by an unwillingness to address CRT contributions within mainstream legal scholarship. That unwillingness to listen is a sign of disrespect for racialised colleagues. The only counter to that is greater respect, which requires introspection, education, and explicit allyship on both a personal and structural level. Once respect is gained, it should lead to:
Engagement. CRT (and its cousin, Third World Approaches to International Law) remain marginalised within legal scholarship. Too often, they are addressed in ‘black letter’ and ‘mainstream’ scholarship only when necessary and then only in a footnote; just as frequently, they are excluded from consideration altogether. Given what is demanded of CRT theorists, this is both unwarranted and troubling. It may, however, reflect our own insecurities as White academics. CRT intentionally disrupts the mainstream claim to an ‘unemotional’ or ‘objective’ law and in doing so undermines our belief in our own academic objectivity. One way to diminish the personal challenge CRT makes to each of us is to suggest this is a niche area of critique, one relevant only where ‘race issues’ are prevalent. In the JWIT article, I analyse how this form of ‘othering’ manifests in some modern investment law scholarship and examine how this ‘othering’ undermines the strength and rigour of the marginalising scholars’ research. We need stronger engagement with CRT (and TWAIL) even where we are not contributing to CRT ourselves. It is not enough to acknowledge that CRT theorists exist or have ideas on a topic if we do not engage with those ideas. These performative and perfunctory notes can be just as othering as ignoring the contributions altogether. Instead, we must recognise that CRT has told us something about the law, reflect on that and engage with it. Doing so is not only the minimum we owe our colleagues but it strengthens our individual scholarship and our field.
Finally, we owe them Security. How many universities have a process for responding to death threats? How many managers know how to trigger that response? Following the Threats, I asked that my office address be removed from my web profile. I received the run-around as no one knew how to do this, and no one knew whom to ask to get this done. After a few weeks, my exasperated email said something like: “I would just like the University to not provide every White supremacist in the UK with a roadmap for killing me.” It was perhaps a tad dramatic. It was also effective. It turns out that there is a process for this at my university, but no one I was speaking to knew how to trigger it. Universities need policies and processes in place to protect CRT theorists and we need to train academics on how to use these protections when they are needed.
We also need to provide security within our fields of research. Fears of being marginalised for their contributions can dissuade scholars from racialised backgrounds from publishing the kinds of insights and challenges we need to hear to strengthen the field of scholarship. It can be an impediment to the pursuit of knowledge.
We need to create and enlarge the space available for racialised scholars and CRT theorists both to intervene when and how they choose. In the aftermath of the Christchurch mosque attack, White New Zealanders flooded social media with commitments to Muslim residents and citizens too afraid to travel alone: “I’ll walk with you.” Not “I’ll agree with you.” Not even “I’ll like you.” But “I’ll walk with you.” I will make sure you are safe. That explicit guarantee of security and community matters. It is the only reason I could finish this article. Every scholar deserves the same.
We need to make clear that CRT is a legitimate and respected means of engaging with the law even when we disagree with the critique(s) it prompts. When politicians try to demonise CRT theorists, it should not be incumbent upon CRT theorists alone to defend their work or the legitimacy of their scholarship. That responsibility sits across the spectrum of legal academics. We should be hearing mainstream lawyers rise to the defence of CRT.
Unfortunately, that is rare.
We need to do better moving forward so that our mainstream becomes active interveners rather than passive bystanders, anti-racist rather than a racist structure.
A concluding note
I will not pretend, as academics can do, that either my question or the answers I offer here are particularly original. They build on and draw from decades of work done in TWAIL and CRT. But, it took 600 years of intentional efforts by writers, scholars, and politicians from a variety of places to construct the racialised beliefs we have now. Deconstructing that will require each of us to reiterate our lessons learned, and the actions we need to take to be antiracists. This post, and the article in JWIT, are merely intended to add to that practice.
My latest publication is now out in the Journal of World Investment & Trade. In it, I use a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine how modern investment law scholarship continues to embed and evidence historical narratives around race.
CRT is a set of methodological contributions that allow us to interrogate how the law protects, fosters, and replicates racist hierarchies. It is not, as the media would suggest, a singular narrative about race and racism. Yet it is premised on the recognition that race is a social construct, often beyond our cognition. Its founding lights, including Derrick Bell, Kimberlé Crenshaw, and Richard Delgado have pointed to how the law has been used to produce, embed, and replicate racialised narratives and beliefs so as to allow for the protection of power and privileges for White people in the US. Third World Approaches to International Law (TWAIL) has done similar work for international law.
This article brings together Capers’ methodology with the scholarship from TWAIL and other international law scholars to analyse how historically constructed narratives around race remain a part of international investment law scholarship now. I argue that by failing to guard against the impacts of socialised racism on our scholarship, we undermine the integrity, rigour, and significance of that scholarship and of our field.
I also consider how we can do better, individually and collectively, by intentionally centring critical scholars and communities of scholars in our inquiries, Reading Black our own and others’ writing, and better integrating issues of race into journals and peer-review processes.
In this two-part autoethnographic blog post (part confessional, part reflective), I explain what led me to use CRT to critique international legal scholarship (part 1), what I learned in using it as a relatively privileged white woman, and what we as an academic community owe CRT scholars, particularly those from racialised backgrounds (part 2).
The origins
It is necessary to know up front that I am a White, American woman who considers herself attuned to issues of race.
Asserting my identity as ‘White’ is itself problematic. There is no biological basis for race. Instead, Whiteness is a fluid social construct that is the result of the European need to justify colonialism and slavery.
Moving into direct control of Africa—as opposed to procuring gold and slaves through trade with North Africans—required a justification that would appease their citizens, the Church, and other European states. Writers like Gomes Eanes de Zurara (p.24), lawyers like Grotius, philosophers like Immanuel Kant, and numerous politicians and scientists, wrote and rewrote those justifications. The result is that we now have approximately 600 years of socialised belief in race and in racist narratives. At each step, the intentional socialisation of racialised hierarchies has left an implant on our language and framing choices.
In many ways, my childhood was one long education in this history and its modern impacts.
I grew up in a politically conscious family in a racially and socioeconomically diverse community (more about that here and here). In my better childhood moments, I could identify how race impacted social, economic, and political opportunity and how I benefitted from those inequalities. I could identify my own Whiteness without understanding it or having a term for it.
In my worst moments, I accepted the privileges Whiteness offered without thought and often with the belief that I deserved them.
It was not that I ever, by values, believed in racism or White supremacy. Had you asked me then, I would have pledged my allegiance to equality and diversity and pointed to my Black friends. Yet, I lived an existence that was designed to protect my Whiteness and by failing to challenge the structures that did that, I often and without intention reproduced racist beliefs and hierarchies.
When someone said something racist, I often assumed someone else (i.e., someone from a racialised background) would call them out. That was, until a friend in high school explained the exhaustion and resignation she felt every time she was left to speak up on her own. It was through this conversation that I learned the difference between being not-racist and being anti-racist: given our global history, it is not enough to, by values, be not-racist. We must be actively antiracist by action, meaning we must work to deconstruct the systems, structures, and narratives that were historically constructed for racist purposes.
At the time, I did not use that language or know that vocabulary. I merely recognised and accepted responsibility for calling out and ‘calling in’ racist statements (sometimes gently, sometimes not), and for having the discussions with White people that are forms of unseen labour for people from racialised backgrounds (no, you can’t use the N-word even though a rapper or comedian does; no, colonialism did not bring democracy to the colonised).
Given how very White my undergraduate (and law school) was, I had a lot of practice in this.
It was through these conversations, and more so through hearing White colleagues defend their privileges, that I recognised my own Whiteness and was forced to confront the worst versions of my childhood self: accepting the world as I enjoyed it as a neutral reality and ascribing blame to those who did not enjoy the same privileges.
I became comfortable having conversations about race. Until last year, however, I had never written academically on the issue.
That choice reflects a series of complicated questions I had about my place in this scholarship, starting with:
Can I Write CRT?
I have to credit Verna Williams and Emily Hough for starting me on a path to using CRT. I never took their Race and the Law class, but I started reading CRT because I was overly competitive with a small number of close friends who were taking it and wanted to sound informed when we spoke (as I said, the post is part confessional).
CRT adds to our knowledge and methods the means for interrogating, identifying, and explaining how the law and our social institutions have been and are designed to protect Whiteness from all others.
Through CRT, I was able to better understand experiences with Whiteness that I had from my earliest childhood memories through my life in Japan, Denmark, and the U.K. I consumed CRT because it answered the questions that my subconscious had clocked but I had not been able to articulate, and it gave me a vocabulary for expressing things I did understand but had difficulty explaining to others.
I never wrote on race or used CRT explicitly in my own research, however, because I never thought I had anything of interest to say. I also worried about the space I would take up if I did try to say something meaningful.
I still worry about that. And I’m glad I do.
When I think about what it means to be White talking about race, I often think of the fish in the aquarium toward the end of Finding Nemo. For those hazy on the Disney classic, Nemo is a fish taken from the ocean and brought to an aquarium where he meets other fish who have only ever lived in the aquarium. Nemo understands the constraints imposed by the aquarium and tries to explain to the other fish what the ocean is like. The aquarium fish exist in a system constructed for the purpose of protecting them, keeping them fed, but also keeping them confined and isolated from all other spaces and objects, particularly the ocean. The fish know they exist within the aquarium, they can identify the contours of the aquarium, and can see what lies immediately beyond it. But, they never know what it means to be outside the protected system, to look at it, to understand it, to escape it, or (in any knowing way) to be oppressed by it.
They could never deconstruct or explain the aquarium; at best they can offer a limited understanding of their experience and reality within it.
That’s how I feel when writing about race.
CRT has given me terminology, language, and methodologies but I was never sure if I had anything to offer it. The structures and systems invented for my ‘protection’ keep me on the inside, meaning I can never examine them from the outside and therefore can never adequately or completely critique them.
Simultaneously, not participating in the scholarly discussion unduly transfers the burden of leadership onto those from racialised backgrounds. This has two significant consequences. It reproduces an existing narrative that ‘race issues’ fall into a niche field of study for racialised scholars. This is a form of othering that centres the White experience as ‘neutral,’ an area of research that all are interested in, while the impact of the neutral reality on those that are ‘not White’ becomes irrelevant to those who are White. I have witnessed how this is used to diminish the contributions of racialised scholars, and in the JWIT article I recognise moments where this form of othering occurs in modern scholarship.
The second consequence of White scholars refusing to engage with issues of racism or CRT is that individual racialised scholars are given a mandate they may or may not want to take up.
In the two fields where I spend most of my time (Business and Human Rights, and International Investment Law), there are an increasing number of racialised scholars, but they remain disproportionately underrepresented, particularly in mainstream leadership positions. It is not unusual in either field to attend an all-White panel (or ‘Wanel,’ if you will). If we leave leadership on ‘race issues’ to the few racialised scholars, they face an unfair choice: either speak about race and nothing else or speak about other things and leave unaddressed issues associated with race and racism.
Neither of those realities are acceptable.
Continuing a Lifelong Conversation
I began the current article almost two years ago when I tweeted about a book review I found troubling for the way in which it diminished the criticisms of those writing from the ‘Global South.’ To their credit, JWIT’s Editors-in-Chief, Hélène Ruiz Fabri and Stephan Schill invited me to develop my concerns through an article. I had wanted to protect space for an early career researcher from a racialised background to co-author with me, but I couldn’t find someone willing to do this. So, I decided to do what I have long done: have a conversation about race with other White people.
Bennett Capers’ Reading Black methodology allowed me to do that.
The methodology places legal developments in their broader context to examine how cases developed, socially and linguistically, to protect and preserve a White identity that sits apart from and is superior to the identity of others.
In the JWIT article, I Read Black four pieces from modern investment law scholarship to explain how they unintentionally embed and replicate historical, racialised narratives. In developing the article, I wanted to focus on current scholarly contributions. There is a great deal to discuss on the racialised development of investment law, but it is easy to dismiss the impact of the historical developments if we do not address how they continue to manifest in our work now.
It would be easy, and wrong, to conclude that the article targets the authors or practices of those four pieces. I do not believe the authors of the four pieces are, by value or intention, racist. Yet, as I demonstrate in the article, they produced language and framings that reproduced racialised hierarchies. This was likely because they did not, and were not required to, reflect on their assumptions and develop an intentional, antiracist praxis to their work.
This is unsurprising. Success in academia often requires mimicking the ‘big names’ of a field. In investment law, those names are often White (culturally) Europeans. Replicating their work can mean ignoring significant criticisms and scholarly contributions from racialised scholars, and in doing so replicating the hierarchies the ‘big names’ constructed, accepted or reproduced themselves. That’s a problem if we ever want to do better with and by our scholarship than they did.
The article is aimed at reminding us to be as rigorous and intentional in our language and framing choices around in- and out-groups as we are in other areas of our research. In doing so, we can produce better scholarship while contributing to the normative good of combatting racism.
Using Capers’ methodology to raise these issues felt like a continuation of the conversations I learned to have as a teenager while moving those conversations into the professional circles I occupy as an adult. As with all the other conversations I’ve had on racism, I expect some will dislike the article and disagree with my conclusions. I’m comfortable with that. But, in the next part of this blog post, I explain how hate and fear almost derailed the work and how that experience can remind us of what we owe CRT theorists.
Ιn collaboration with the Cassese Initiative, Dr. Antonio Coco (Lecturer in Law at the University of Essex) recently launched ‘Antonio Cassese: The Stubborn Sparrow’, a podcast series on the work and legacy of the late Professor Antonio Cassese, pioneering international lawyer, on the occasion of the 10th anniversary of his passing.
The series is exploring Prof. Cassese’s impact on international law and institutions on five selected issues:
genocide;
terrorism;
torture;
human rights in the European Union; and
war crimes.
Two episodes are already available.
Episode 1‘Genocide and the Commission of Inquiry on Darfur’ discusses the findings on genocide and working methods of the UN Commission of Inquiry in Darfur, which Antonio Cassese chaired in 2004-2005. The two co-hosts, Paola Gaeta and Salvatore Zappalà, interview Fannie Lafontaine, who worked with Cassese as his legal assistant at the time.
Episode 2‘The crime of terrorism and the Special Tribunal for Lebanon’ recalls that Cassese was the first President of the Special Tribunal for Lebanon, a hybrid court established in 2007 to try those responsible for the attack that killed the former Lebanese Prime Minister Rafic Hariri and others. In February 2011, under Cassese’s presidency, the Tribunal rendered a controversial decision on the definition of the international crime of terrorism. The co-hosts Antonio Coco and Giulia Pinzauti discuss the decision and Cassese’s contribution to it with guest Guido Acquaviva, the Tribunal’s Chef de Cabinet at the time.
David Frost, the UK Brexit minister, has expressed discontent with the implementation of the Northern Ireland Brexit protocol. This is the trade arrangement at the heart of controversies over trade between the EU, Great Britain and Northern Ireland. Frost has threatened to trigger an emergency brake known as article 16, or even to completely renege on the protocol. But triggering it would have wide-reaching consequences.
Since the beginning of Brexit negotiations, both the EU and UK recognised the need to avoid a hard border between Ireland and Northern Ireland. This was to preserve the 1998 Good Friday Agreement.
The Protocol on Ireland and Northern Ireland was signed precisely for this purpose. Its rules ensure a smooth movement of goods between Ireland and Northern Ireland. But it also introduces checks and controls on goods entering Northern Ireland from the rest of the UK or any other third country. This way, goods entering Northern Ireland comply with EU regulatory standards and can be exported to Ireland (part of the EU) and then to other EU countries.
The EU and UK were aware that the implementation of the protocol could lead to difficulties and problems. This is why they set up a system of joint committees (UK and EU) to discuss issues arising from the protocol and to provide an opportunity for compromise.
The protocol provides that both the EU and UK can unilaterally take “safeguard measures” if its implementation leads to durable and serious economic, societal or environmental difficulties or to diversion of trade. This safeguard is known today as article 16.
Article 16 does not specify what such safeguard measures are. In international trade, they can refer to temporary tariffs, quotas or other measures designed to avoid a country suffering serious harm. Some considerations are helpful to understand article 16 of the protocol.
First, while the EU or the UK can unilaterally take safeguard measures, the other party can respond with proportionate measures to remedy any imbalance between rights and obligations created by the safeguard. Effectively, this could lead to a trade war where the other party would also take measures, such as imposing quotas and tariffs.
In any case, it must be stressed that such safeguard measures do not include tearing up the protocol and replacing it, as has been suggested in the press. In this respect, the protocol makes it clear that the people of Northern Ireland, through a democratic vote, will decide whether the protocol should remain in force in the future.
Secondly, before taking such measures, the EU and UK must attempt to find a common solution. In this case, there is a one month waiting period, starting from the date on which either the EU or the UK advises the other that it intends to take such measures. The protocol also says that any measures taken shall be discussed every three months.
Finally, the protocol is silent on the meaning of “serious economic, societal or environmental difficulties” or “diversion of trade” – the conditions under which the UK or the EU can legitimately adopt safeguard measures. The protocol does not offer any quantitative or qualitative criteria to define these difficulties.
Why the protocol is different
Safeguard measures are not unknown in international trade, for example, within the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) regime. These may be adopted when unforeseeable developments and circumstances connected with trade liberalisation result in an increase of an imported product, causing (or risking) serious injury to domestic producers.
It would be tempting to rely on GATT/WTO case law to define “serious economic, societal or environmental difficulties” as mentioned in article 16. After all, they both refer to “safeguard measures”. However, this would be a mistake for two reasons.
First, the problems arising from the protocol are not unforeseeable, as they were widely predicted when it was signed. Secondly, unlike GATT/WTO safeguards, article 16 measures do not refer to an injury to domestic producers resulting from an increase of imports.
The reality is that the underpinning goal of the protocol is radically different from an international trade agreement, and lies in the need to preserve the Good Friday Agreement and EU regulatory standards on goods. To be legitimate, any safeguard measure taken under article 16 must take this into account.
The article 16 safeguard measures are new and therefore there are no precedents to rely on to understand how they would work. While there may be different interpretations on the appropriate conditions to take such measures, there is little doubt that they will result in tariffs and quotas.
Invoking article 16 should be done responsibly. An unjustified triggering of article 16 from the EU or UK will bear serious economic consequences, and will be detrimental in terms of international credibility.
This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence.
Digital reconstructions of crime scenes have been used more frequently in both domestic and international courts as technology becomes more developed and accessible to courtroom actors.
Though digital reconstructions can be beneficial, especially in the context of international criminal law, as they allow judges to visit crime scenes that would otherwise be too expensive or dangerous to travel to in person, there are inherent risks that come with the use of this novel type of evidence in a court of law.
Sarah’s article explores some key considerations which arise if digital reconstructions are to be used in international criminal courts and tribunals, with an emphasis on the rights of the accused and effects on victims and witnesses.
The article argues that in order for fair trial standards to be upheld and for international courts to fulfil their roles not just as prosecutors of crimes, but as seekers of truth and reconciliation, digital reconstructions need to be approached with caution and analysed through a critical eye.
Sarah will present her paper as part of the Launch Event for the JICJ Special Issue on New Technologies and the Investigation of International Crimes, which will be held virtually on 9 November 2021 at 15:30-17:00 GMT.
This event will bring the authors of articles in the special issue together, including Essex Law School’s Dr. Daragh Murray who also contributed to the same issue and served as one of its co-editors, for a discussion of their key insights on the future role of technology in accountability processes. Those interested in attending can register here.
Dr. Anil Yilmaz Vastardis, Senior Lecturer and Co-Director of the Essex Business and Human Rights Project, School of Law and Human Rights Centre, University of Essex
In my recently published book The Nationality of Corporate Investors under International Investment Law(Hart Publishing 2020), I dissect the relationship between international investment law, corporate law and the concept of nationality. I argue that this relationship has been problematic from host states’ and their communities’ perspective, for it creates a free market for manufactured corporate nationalities enabling wealthy investors to access investment treaty protections to challenge regulatory measures.
Scrolling through the UNCTAD investment dispute settlement database, one can detect, even without reading the awards or decisions, that some businesses publicly known to be corporate nationals of a particular state seek protection under investment treaties of other states. For instance, the UNCTAD database shows a claim filed by Chevron against the Philippines in 2019. One would expect this claim to be filed under the US-Philippines investment treaty, as Chevron Corporation is incorporated and headquartered in the US. But it appears from the UNCTAD investment agreements database that there is no investment treaty between the US and the Philippines. Instead, Chevron filed this claim under the Philippines-Switzerland investment treaty utilising its Swiss subsidiary Chevron Overseas Finance GmbH.
One investor, convenient nationalities
This practice of nationality shopping is relatively common and largely permitted in investment treaty practice. It is enabled by investment treaty texts and generous arbitral interpretations of a corporation’s link to its alleged home state. In the example of Chevron, while it certainly has a corporate presence in Switzerland, through which it may have channelled its investments to the Philippines, the question remains as to whether this alone makes Chevron a Swiss investor. The relevant investment treaty defines a protected Swiss ‘investor’ to include any company incorporated under Swiss law. According to this definition, Chevron in the Philippines is a Swiss investor and not a US investor. However, according to two prior investment treaty claims that Chevron filed against Ecuador, it is a US investor. This is not an isolated instance. In its 2011 claim against Australia, Philip Morris argued it was a Hong Kong investor, whilst at the same time arguing in a 2010 claim against Uruguay that it was a Swiss investor. Philip Morris is a well known, US – headquartered tobacco company. But in investment treaty claims, it has never been a US investor. Similarly, Mobil initiated a claim against Venezuela in 2007 as a Dutch investor and against Argentina in 1999 as a US investor. Total was a French investor in its claim against Argentina in 2004, but it was a Dutch investor in a claim against Uganda in 2015.
Good governance and development narratives no longer justify manufactured nationalities
There are many similar instances of less well-known corporate investors relying on manufactured corporate identities or nationalities in order to invoke investment treaty protections. And all of this is often permitted within the boundaries of investment treaty law and corporate law. Taking a page from Katharina Pistor’s Code of Capital, we can understand investment treaties and corporate law principles as offering a legal coding of foreign investment that enables investors to change identity so as to increase the durability and priority of their interests. Those in favour of this flexibility of investment treaty law argue that we should focus on the bigger picture: the objective of investment treaty law to enhance good governance and economic development would be better achieved if all investors had access to treaty protections and investment arbitration, regardless of their origin or nationality. Thus, it is in line with the objectives of investment treaties to interpret the concept of investor or corporate nationality expansively and flexibly – so much so that an investor can be a national of one state for the purpose of one claim and a national of another state for the purpose of another claim.
The good governance and development narratives of investment treaties, however, have been challenged by recent empirical work. After 20 years of proliferation of investment treaty claims, the evidence is lacking to support these narratives as justification for expanding the personal scope of investment treaty protections. States have begun to pay some attention to the personal scope of their investment treaties, especially for corporate investors, in newly negotiated investment treaties. Increasingly, states are adopting more detailed clauses that require a corporate investor to have a stronger connection to its home state than merely being incorporated in that jurisdiction. The question of personal scope of investment treaty protection is also considered by the UNCITRAL Working Group III as one of the reform areas to overcome consistency and correctness problems in investor-state dispute settlement. The recently published UNCTAD IIA Reform Accelerator also identifies ‘investor’ definitions among the eight key provisions of investment treaties in most need for reform. The objectives of these reform efforts are to tighten the definition of ‘investor’ and introduce ‘denial of benefits’ clauses to prevent corporate investors’ reliance on tenuous links with a home state to access treaty protection.
Reform and the pitfalls ahead
Reform is crucial in the area of personal coverage of treaties to (1) restore the reciprocal nature of investment treaty protections and (2) to avoid the reforms pursued by states on substantive investment treaty standards being side-stepped by investors by relying on the remaining older generation investment treaties. As I argue in my book, the permissive definitions of investor in older treaties and expansive interpretations of even the tighter definitions by arbitral tribunals have resulted in undermining the reciprocal nature of investment treaty commitments among states. There is no barrier for a US investor to rely on investment treaty protections for its investments in the Philippines, despite the two countries not having committed to extending such protection to each other’s investors. The definitions of investor, coupled with the convenience of creating corporate entities, artificially transform the standards of protection included in investment treaties into pseudo-erga omnes obligations for states which can be invoked by any investor, whether or not they are genuinely covered by a treaty. While reform of treaties is necessary to reverse this trend, treaty wording alone may not offer the tightening of standards the states are aiming for. Investment arbitration tribunals continue to have decisive input over the interpretation of treaty standards. This means that even tighter standards can be loosened in the process of arbitral interpretation. One of the key reforms added to investor definitions is to require that a protected investor has its real seat or substantial business activities in the home state. Yet, in a recent arbitral award in Mera Investment v Serbia, the tribunal interpreted the concept of real seat as the place of incorporation and permitted a shell corporation indirectly owned by nationals of the host state to benefit from the investment treaty, despite the investor lacking the genuine connections to the home state sought in the investment treaty. Thus, textual reform of treaties may not achieve the outcomes desired with the current model of investment arbitration.
The second consequence of the current definitions of investor and arbitral interpretations is that they can undermine substantive investment treaty reforms pursued by host states. This is due to investors’ ability to adopt a new, or rely on an existing corporate nationality, established using subsidiaries or mailbox companies and based on tenuous links with a home state that has an older generation treaty with the host state. In this way investors, who may genuinely be nationals of a home state that has recently signed a reformed treaty with the host state, can sidestep the reformed treaty and rely on an older generation treaty to bring its claim against the host state. Many new investment treaties introduce more nuanced substantive standards of protection and exceptions to the application of standards such as the FET standard or indirect expropriation in the areas of policies and measures introduced in the public interest. If, for instance, a Canadian investor within the EU wishes to avoid the provisions safeguarding the host state’s right to regulate to achieve legitimate public policy objectives enshrined in CETA, it can rely on an older generation investment treaty signed by the relevant EU member state and a third state in whose territory the investor can set up a shell corporation or has an existing subsidiary to reroute its investment before filing a claim and before a dispute becomes reasonably foreseeable.
Conclusion
Many states are working on reforming their investment treaties to curb the excesses of the older generation investment treaties. Unlike their first-generation counterparts, these newer generation treaties are being negotiated with greater attention to detail and lessons learned. The process for any state to reform its entire investment treaty programme can take a significant amount of time. In the meantime, investor definitions in treaties and expansive interpretation of this notion by arbitral tribunals can allow backdoor access for investors to older generation treaties via subsidiaries or shell corporations based in third countries. Even if a state reforms all its treaties and tightens investor definitions and includes denial of benefits clauses, there will still be a risk of arbitral tribunals undermining the objectives of the parties by interpreting the concepts incorrectly, as was done in Mera Investment v Serbia. The problems with both investment treaty texts and the decisive interpretative influence exercised by arbitral tribunals over those texts indicate that even serious change to one aspect of the investment treaty system, in isolation, can be undermined in the absence of more systemic reform.
The author would like to thank Daria Davitti, Nathalie Bernasconi, Paolo Vargiu, and Zoe Phillips Williams for their helpful comments.This post was originally published on Investment Treaty News.
Dr Birsha Ohdedar, Lecturer in Law, University of Essex, has published a new chapter, co-written with Steven McNab (Partner, Cleantech Cadre) on Climate Litigation in the United Kingdom. The chapter is published in M. Weller & W. Kahl (eds.) Climate Change Litigation: A Handbook (CH Beck 2021).
Ohdedar and McNab examine both the history of climate litigation and emerging trends in the United Kingdom. As they point out, the Courts in the United Kingdom have kept away from the global spotlight in many ways, not producing high profile cases that have grabbed headlines like those in the Netherlands or Pakistan. However, there has been a growing suite of climate-related jurisprudence in the United Kingdom covering a breadth of different areas of law. In fact, by some measures, the United Kingdom has the third most recorded climate litigation cases in the world.
Analysing the emerging trends of climate litigation in the United Kingdom, Ohdedar and McNab identify and discuss three types of litigation:
public/administrative law litigation against the government’s climate targets and standards;
litigation stemming from a transition to a low-carbon society (that is, litigation against fossil fuel intensive projects, such as fracking and airport runways, and for low carbon projects, such as renewable energy development); and
criminal litigation that targets climate activists and climate protests.
The chapter provides a bird’s eye view of many cases in these three categories linking back to broader themes of climate litigation globally.
The chapter is a valuable resource for practitioners, researchers and students and complement the comparative approach of the Handbook.
The book offers a cutting-edge analysis of the relationship between law, armed conflict, gender and peace. This book, which is the first of two volumes, focuses on the interplay between international law and gendered experiences of armed conflict. It provides an in-depth analysis of the key debates on collective security, unilateral force, the laws governing conflict, terrorism and international criminal law.
While much of the current scholarship has centered on the UN Security Council’s Resolutions on Women, Peace and Security, this two-volume work seeks to move understandings beyond the framework established by WPS. It does this through providing a critical and intersectional approach to gender and conflict which is mindful of transnational feminist and queer perspectives.
Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 21 Dec. 2020), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2020, we had 89 posts (up from 29 in 2019) on a very wide variety of topics by authors from all areas of law. Also, we have more than doubled our views (moving from 3,326 in 2019 to 7,440 in 2020). More than half of these are from the UK, with the USA, Canada, Germany, France and China making up the rest of the top five.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
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