Abstract
What is modernity in international trade and investment law when confronted with a never-ending inflation of norms and proliferation of dispute settlement mechanisms whose decisions are, if only known, sometimes incoherent and often inconsistent? Isn’t modern international economic law also driven by successive developments hence always on the move towards the integration (or not) of new protagonists and potential subjects, either public or private, which domains of action rest at the margin of its traditionally defined sphere of competence that is the regulation of trade and investment relations amongst nations. In this rather unstable environment, the rediscovery of sovereignty in the light of the emergence of a new State capitalism and the better voiced and framed expectations of an interrelated global civil society contributes to a form of stabilization, if not yet re-unification, of an international law now ritually denounced as fragmented. While it was not the purpose of this book to thoroughly assess the latest developments of sovereignty as a polymorphous, uncertain and so controversial concept in international trade and investment law, the question arose throughout all its contributions as in the statist perspective chosen to approach a variety of contemporary trade and investment disputes’ methods, actors and decisions. New challenges remain such as corporate nationality shopping aiming, as in the recent Phillip Morris case, to expand the scope of possible arbitration jurisdiction through better treaty protection. But here again, it is around the State that the question revolves. Hence, it is time for the State to reshape its approach of international trade and investment law-making so that it is eventually judged according to the standards he set on the basis of the very significance of sovereignty that is independence.
By “modernity” I mean the ephemeral, the fugitive, the contingent which make up one half of art whose other half is the eternal and the immutable.
Charles Baudelaire, “The Painter of Modern Life” in The Painter of Modern Life and Other Essays
In homage to Professor John H. Jackson’s scholarship on statehood and the sovereign.
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Notes
- 1.
See, John H Jackson, Sovereignty: Outdated Concept or New Approaches, in, Wenhua Shan, Peneloppe Simons & Dalvinder Singh (eds) Redefining Sovereignty in International Economic Law (Hart Publishing, 2008) 4-5; John H Jackson, Sovereignty, the WTO, and Changing Fundamentals of International Law (Cambridge, Cambridge University Press (CUP), 2006).
- 2.
See, M Sonarajah, The Neoliberal Agenda in Investment Arbitration: Its Rise, Retreat and Impact on State Sovereignty, in, Wenhua Shan, Peneloppe Simons & Dalvinder Singh (eds) Redefining Sovereignty in International Economic Law (Hart Publishing, Sydney, 2008) 199.
- 3.
See, the UN General Assembly 1962 Resolution 1803 on Permanent Sovereignty over Natural Resources (http://untreaty.un.org/cod/avl/ha/ga_1803/ga_1803.html), the 1974 Declaration on the Establishment of a New International Economic Order (NIEO) and the 1986 proclamation of a right to development. While the 1803 Resolution eventually proved quite consensual in affirming a number of fundamental principles such as the payment of compensation, in accordance with international law, in the event of a taking of alien property for public interest, as well as the possibility to resort to international dispute settlement mechanisms after exhaustion of local remedies, this apparent international consensus did not last for long. The adoption, in December 1973, of the General Assembly Resolution 3171, and, even more importantly, of the 1974 Charter of Economic Rights and Duties of States designed to support the NIEO, lifted all ambiguities. The approach was clearly not sympathetic toward a liberal model promoting States opening up policies. Although the text of the Charter remains of a general and non-binding nature and cannot be compared to precise treaty provisions, it is clear that: “no State shall be compelled to grant preferential treatment to foreign investment” and “where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.”
- 4.
In reference to DS394/DS395/DS398: China – Measures related to the exportation of various raw materials and DS431/DS432/DS433: China – Measures related to the exportation of rare earths, tungsten, and molybdenum.
- 5.
See, Ernst-Ulrich Petersmann, State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law, in, Wenhua Shan, Penelope Simons & Dalvinder Singh (eds) Redefining Sovereignty in International Economic Law (Hart Publishing, Sydney, 2008) 27–60.
- 6.
See, the UN Guiding Principles on Business and Human Rights available at: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf and the UN Global Compact’s CEO Water Mandate guidance for companies on how to respect human rights to water and sanitation available at: http://ceowatermandate.org/files/business-hrws-guidance.pdf.
- 7.
In reference to the infamous judgement by Professor Max Huber in the Island of Palmas case, which begins with the words: “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” See, Netherlands v USA, Island of Palmas case, 2 UNRIAA (1928) 829.
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Choukroune, L. (2016). Sovereignty Modern. In: Choukroune, L. (eds) Judging the State in International Trade and Investment Law. International Law and the Global South. Springer, Singapore. https://doi.org/10.1007/978-981-10-2360-6_10
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