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International investment law and arbitration is its own 'galaxy', made up of thousands of treaties to be read in relation to hundreds of awards. It is also diverse, as treaty and arbitration practices display nuances and differences on a number of issues. While it has been expanding over the past few decades in quantitative terms, this galaxy is now developing new traits as a reaction to the criticisms formulated across civil society in relation to the protection of public interest. This textbook enables readers to master and make sense of this galaxy in motion. It offers an up-to-date, comprehensive and detailed analysis of the rules and practices which form international investment law and arbitration, covering its substantive, institutional and procedural aspects. Using analytical and practice-oriented approaches, it provides analyses accessible to readers discovering this field anew, while it offers a wealth of in-depth studies to those who are already familiar with it.
In Chapter Nine I attempt to answer the following question: Can Law Be Emancipatory? The answer takes into account the previous analyses, and aims to give political-juridical content to the oppositional postmodern conception of law. Drawing on examples of concrete political-juridical practices occurring in various parts of the world, I formulate the conditions for an emancipatory use of law. The set of these conditions and the practices into which they translate themselves, I designate as subaltern legal cosmopolitanism. This chapter was written under the logic of the sociology of emergences. My aim was to unfold the signs of the reconstruction of the tension between social regulation and social emancipation, as well as the role of law in such a reconstruction. The credibility of the signs was built on excavation work upon the foundations of the paradigm of modernity - a work that confirmed the exhaustion of the paradigm, while revealing as well the wealth and vastness of the social experience it rendered possible at the beginning, and later went on to discredit, marginalize or simply suppress.
In this chapter I present a new theoretical proposal based on the distinction among several modes of production of law that operate in society in articulation with as many modes of production of power and knowledge. The main features of this framework are the following. Capitalist societies within the world system are constituted by six structural places, six basic clusters of social relations, which define the horizon of relevant determination. This horizon establishes both outer limits and possibilities, thereby allowing for a minimalist order, a chaos-friendly order, an ordering principle that operates through complexity, fragmentation, hybridization and, above all, through constellation. My argument is that the political character of social relations of power does not lie in one particular form of power, namely citizenplace power (domination), but rather in the aggregate power resulting from the constellations among the different forms of power in different social fields. Similarly, the legal character of social relations of law does not derive from one single form of law, namely from citizenplace law (state law), but rather from the different constellations among different forms of law. Finally, the epistemological profile of social relations is not provided by one specific epistemological form, namely the epistemological form of the worldplace (science), but rather by the different constellations of knowledges that people and groups produce and use in concrete social fields.
How do Latin America’s poorest citizens participate in politics? This article explores the role that community organizations play in mobilizing individuals into three common modes of political participation: voting, protesting, and contacting government. It argues that community organizations help mobilize poor individuals both through the resources they provide for mobilization and because they serve as sites where political parties target individuals for mobilization. It analyzes survey data from LAPOP surveys for 18 Latin American countries and finds that overall, poor people are just as politically active as more affluent individuals; that involvement in community organizations is a very strong predictor of all types of political participation; and that membership in organizations has an especially strong effect on voting and protesting for poor people. By equalizing levels of political participation across income groups, organizations help erase class-based inequalities in participation that have plagued democracies in the region.
TG must be carried out inclusively, and with due respect for the continuous principle of self-determination. The ‘inclusion cascade’ read in conjunction with this principle goes further than the procedural right to a constitutional referendum and general elections towards the end of the interregnum, yet requires less than substantive democracy. TA are expected to favour broad and progressively inclusive popular participation whereby answers to questions as to who to include, how and when are gaining precision. The concept of population is being redefined and inclusivity becomes a must for some techniques (notably constitution-making) and at some moments (notably towards the end) of the transition. In the same context, TA usually commit to some form of TJ and, subject to a few limitations, may choose how to do so. These practices contribute to custom formation in relation to TG. At the same time, the principle of self-determination gains in precision through such practices mostly seen as obligations of conduct.
Political mobilization in the electoral and protest arenas have long been studied as separate phenomena, following their own, independent dynamic. Parties and protests are rarely examined within the same framework, although the protest engagement of political parties is often assumed to be one of the main driving forces of the wave of protest in southern European countries, those most exposed to the economic crisis. The chapter provides the first large-scale study of protests sponsored by political parties across Europe before and after the Great Recession. It relies on a novel protest event dataset, collected by semi-automated content analysis of news agencies. The data cover protests in thirty countries, from 2000 to 2015. The results show the ‘crowding out’ of political parties as the driving force of the protest wave in southern Europe. We find the highest share of party sponsored protest in eastern Europe, where unlike in north-western and southern Europe, right-wing and non-mainstream parties are also active in protest. In line with the overall findings of the book, our results confirm the distinctive dynamic of protest in the three European macro-regions and put the link between social movements and the new challenger parties in perspective.
In the aftermath of the violent Revolution of Dignity (2013/2014) and the subsequent war in Donbas (2014–), a heroic story about the new beginning of a “united, Ukrainian nation” began to emerge. Shaping this new narrative are new museum projects devoted to Ukraine’s developing history. This article examines the process of these new institutions’ formation, the content of created exhibitions, and the activities conducted therein. It focuses on the role of the museums in activating, unifying, and integrating both the Ukrainian national community and civil society. This article is based on a qualitative analysis of materials collected during seven research stays in Ukraine, from June 2017 to August 2019, and focuses on four cases–Ukraine’s First ATO Museum in Dnipro; the Museum of the Heavenly Hundred in Ivano-Frankivsk; the Ukrainian East exhibition in the National Museum of the History of Ukraine in the Second World War in Kyiv; and a project of the Museum of the Revolution of Dignity in Kyiv. The examined institutions are presented not only as places for gathering artifacts but also as laboratories of civic activism, participation, and dialogue.
Chapter 8 investigates the evacuation of approximately 40,000 Dutch children out of the famine-affected areas. In the 1940s, the Netherlands enjoyed an extensive health- and family care system and had a strong civil society. Many networks were therefore in place to efficiently organise relief. These child evacuations were only one aspect of relief efforts but, similar to the child-feeding initiatives, they highlight the active role of ordinary people and grassroots initiatives in taking emergency measures. Shared ideas on the importance of the continuation of family life, even under extreme circumstances, and protecting the future of Dutch society were key to this communal response to the famine conditions.
This is an innovative new history of famine relief and humanitarianism. The authors apply a moral economy approach to shed new light on the forces and ideas that motivated and shaped humanitarian aid during the Great Irish Famine, the famine of 1921-1922 in Soviet Russia and the Ukraine, and the 1980s Ethiopian famine. They place these episodes within a distinctive periodisation of humanitarianism which emphasises the correlations with politico-economic regimes: the time of elitist laissez-faire liberalism in the nineteenth century as one of ad hoc humanitarianism; that of Taylorism and mass society from c.1900-1970 as one of organised humanitarianism; and the blend of individualised post-material lifestyles and neoliberal public management since 1970 as one of expressive humanitarianism. The book as a whole shifts the focus of the history of humanitarianism from the imperatives of crisis management to the pragmatic mechanisms of fundraising, relief efforts on the ground, and finance. This book is also available as Open Access on Cambridge Core.
Since Xi Jinping came to power in late 2012, the party-state has moved to increase its control over virtually every important element of Chinese public life, including the media, the Internet, academia, civil society organizations, rights activists and lawyers, the legal profession, and arts and culture. The crackdown on civil society has been particularly damaging. Many of the top rights advocacy organizations in China have been targeted: some have been forced to scale back their work, while others have been shut down. In other words, whereas in the past, the party was willing to tolerate some degree of activity outside of party-sanctioned zones, it now wants a less crowded playing field, one in which it plays a larger role. At the same time, the CCP has also sought to tightly constrict foreign influences. Whereas law was once seen as a tool to facilitate foreign engagement in China, it is increasingly being used to control – or even block – international engagement that the Party sees as problematic. The passage of the Foreign NGO Law, which heavily regulates the activities of international NGOs and foundations, represents a new chapter of China’s engagement, both with domestic civil society, and with the international community.
In Chapter 6, William David looks at the inter-linkages between trade and environment in various FTAs and provides a thorough examination of new provisions in the environment chapters of regional trade agreements and how they may impact Indigenous peoples. Particular emphasis is placed on an exploration of the North American Agreement on Environmental Cooperation (NAAEC), a side agreement of the NAFTA, as well as the CPTPP and the intersection between Indigenous rights, environmental law and ISDS under the NAFTA.
In 2017, the Global Fund Board revised its Eligibility Policy, which sets out the criteria for which countries are eligible for financing. This chapter considers the impact of decisions made using those indicators, and explores debates over use of Gross National Income per capita (GNIpc) to determine aid eligibility. It also shows the role of civil society and community representatives in these high-level policy debates. Reviewing the Global Fund’s history, this chapter shows it was not the only donor wrestling with these problems of prioritization, and that in many countries the Fund was the last remaining external HIV donor to transition out. When some middle-income countries with concentrated epidemics among key populations saw multiple donors divest, programs for key populations, such as harm reduction, were at risk. In revising the Fund’s Eligibility Policy, the high-stakes contest was focused on a brief document of just a few pages, in which changing a single indicator could have sweeping consequences for countries such as Russia, where the Fund supported civil society advocacy for key populations. This chapter shows how three civil society delegations worked together to advance a shared position on the policy.
To understand how community leadership can be incorporated in health research, this chapter tracks the first stages of a population size estimate in six Eastern Caribbean countries, with a focus on one of the countries, Grenada. Grenada is a small island state and an upper-middle-income country. While external aid previously funded much of the region’s HIV response, global health agencies are transitioning out to prioritize reaching the “end of AIDS” in high-prevalence, lower-income countries. However, criminalization and discrimination contribute to lack of resources for key populations in middle-income countries. In Grenada, abrupt US aid withdrawal left community groups dormant, without funding or staffing. In past studies, after the data was extracted, local groups saw no results of the research. A regional civil society group, Caribbean Vulnerable Communities (CVC), will lead this new population size estimation study. An ethnographic study of the CVC study highlights the challenges with finding and counting hidden key populations. CVC must restart old networks and rebuild trust. The activists negotiate for power and control of the data, using their arduous research to position revived community groups at the center of national HIV responses; hoping that the research will produce “something more than just data”.
South Korea is a success story in terms of institutional development. Not only did the country build a high-capacity ‘developmental state’ in the early second half of the 20th century but, towards the end of the 20th century, Koreans also witnessed the replacement of autocratic rule by a liberal democratic regime. The sequencing of these development stages seems to support ‘stateness first’ arguments, which claim that succesful democratization requires certain degrees of infrastructural capacity and citizen agreement. And, in fact, the ‘developmental state’ significantly facilitated the survival and rooting of South Korea’s democracy. However, as this chapter show, the process of state-building under autocratic rule left behind institutional legacies that continue to hinder democratic consolidation – in particular an under-institutionalized party system and a weak civil society. More generally, the chapter shows that the state-democracy nexus can be subject to path-dependent effects.
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was established under Cambodian law in 2004, but also operates pursuant to an agreement with the UN. The ECCC has convicted defendants for charges including genocide, crimes against humanity, and grave breaches of the Geneva Conventions. This may appear to indicate that Cambodia’s leaders have accepted the norm of international criminal justice, at least for historic crimes. Yet the reality is more complex. This chapter examines the history of international crimes trials in Cambodia. It shows that Cambodia does not provide an example of linear progression towards acceptance of the norm of international criminal justice, but neither is there only stalling or complete rejection of this norm. It then demonstrates how international and Cambodian government actors and civil society have sought to influence Cambodia’s laws and institutions for investigating and prosecuting international crimes, before examining each of these mechanisms. This chapter argues that Cambodia’s interaction with international criminal justice disturbs any assumption that international law norms are diffused over time and from certain locations outside Cambodia (spaces) to within the country (direction).
After decades of military rule, internal conflict, and international sanctions, under a new government in Myanmar there was emerging opportunity to consider how, if at all, to respond to the serious human rights violations of previous decades, and address ongoing violence that persists today, including in Rakhine (involving the Rohingya), Shan and Kachin States, and in the South East of Myanmar. The relative lack of mechanisms for prosecuting international crimes, and government opposition towards International Criminal Court and United Nations investigations, suggest that Myanmar’s leaders have rejected the norm of international criminal justice. Yet this chapter presents a complex story of ongoing contestation. It first reveals the historical engagement with international criminal law in Myanmar. It then analyses the themes different actors raise when they seek to influence international criminal justice in relation to Myanmar, before analysing Myanmar’s laws and institutions for responding to international crimes. It concludes that while Myanmar represents a highly challenging context for encouraging the prosecution of international crimes, there is a dynamic process of engagement with this norm.
The Philippines signed the Rome Statute on 28 December 2000, adopted legislation to incorporate international crimes into domestic law in 2009, ratified the Rome Statute in 2011, and withdrew in 2018 (effective in March 2019). Institutional developments, the passage of laws, and public statements by Philippine leaders in the past indicated support for (and implementation of) the norm of international criminal justice. However, the lack of enforcement of the Philippines’ international crimes legislation and events since President Rodrigo Duterte took office suggest that the government of the Philippines has certainly not accepted the norm of international criminal justice. Rather, debate continues. This chapter outlines the ongoing saga of international criminal justice in the Philippines. It then explores how government and civil society actors have used their experiences and initiative to debate the laws and institutions for investigating and prosecuting alleged international crimes in the Philippines. The chapter analyses the key features of these mechanisms, which continue to be discussed and developed. It shows how approaches to international criminal justice in the Philippines have involved dynamic interactions and adaptation.
International crimes are alleged to have occurred in the colonial period, within separatist conflicts (including in relation to Timor-Leste’s independence), during 1965 and Suharto’s subsequent presidency, and more recently, including in Papua. This chapter focuses on Indonesia’s national laws and institutions for prosecuting international crimes committed in Indonesia (as well as in East Timor prior to its independence as Timor-Leste in 2002). It reflects on the politicised history of international criminal law trials in post-colonial Indonesia. It then analyses statements made by representatives of foreign states and international organisations, the Indonesian government, and civil society about approaches to international criminal justice. It considers how this engagement has resulted in the adoption of laws that reflect some aspects of the norm of international criminal justice, but also amplify other principles and remain the object of debate – including planned amendments to the Criminal Code.
When do membership-based civil society organizations such as interest groups, political parties or service-oriented organizations consider their existence under threat? Distinguishing pressures of organizational self-maintenance from functional pressures of goal attainment, which all voluntary membership organizations – irrespective of their political or societal functions - need to reconcile, we propose a framework theorizing distinct categories of drivers of mortality anxiety in organized civil society. To test our hypotheses, we apply ordered logistic regression analysis to new data covering regionally and nationally active interest groups, service-oriented organizations and parties in Germany, Norway, Switzerland and the UK. We find that factors enhancing intraorganizational resilience thereby facilitating self-maintenance as well as exposure to different representation challenges complicating goal attainment have significant effects on mortality anxiety experienced by interest groups, political parties and service-oriented organizations alike – the former reducing, the latter enhancing it. Stressing the importance of a stable, durable organizational infrastructure with loyal and involved members to operate in increasingly volatile and diverse environments, our findings highlight the on-going importance of ‘traditional’ (sometimes considered ‘outdated’) organization-building.
This chapter sets out the conceptual framework of the book, examining challenges to democracy in Japan and the world, and recent searches for alternative visions of politics. The end of the Cold War in Europe did not, as some had hoped, lead to a global triumph of democracy. Rather, social frictions associated with the global spread of market capitalism created a crisis of democracy symbolised by the rise of new forms of populism. This crisis has inspired new searches for political alternatives, many of them focusing on grassroots forms of informal politics. The chapter introduces the notion of informal life politics, which will be central to the chapters that follow, and highlights the importance of examining the historical as well as the present-day dimensions of informal life politics in Japan and beyond.