JOURNAL: Transnational Legal Theory

The latest issue of Transnational Legal Theory (Hart Publishing) is out.

It includes:

Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the ‘Politics of Space’

Philip Liste

Abstract: In Kiobel v Royal Dutch Petroleum, Dutch and British private corporations were accused of having aided and abetted the violation of the human rights of individuals in Nigeria. A lawsuit, however, was brought in the United States, relying on the Alien Tort Statute—part of a Judiciary Act from 1789. In its final decision on the case, the US Supreme Court focused strongly on ‘territory’. This use of a spatial category calls for closer scrutiny of how the making of legal arguments presupposes ‘spatial knowledge’, especially in the field of transnational human rights litigation. Space is hardly a neutral category. What is at stake is normativity on a global scale with the domestic courtroom turned into a site of spatial contestation. This paper explores the construction of ‘the transnational’ as space, which implicates a ‘politics of space’ at work underneath the exposed surface of legal argumentation. The ‘Kiobel situation’ is addressed as a case belonging to a broader picture, including the following contested elements of space: a particular spatial condition of modern nation-state territoriality; the production of ‘counter-space’, eventually undermining the spatial regime of inter-state society; and the state not accepting its withering away. How are normative boundaries between the involved jurisdictional spaces drawn? How does the ‘politics of space’ work underneath or beyond the plain moments of judicial decision-making? How territorialised is the legal knowledge at work and how does territoriality work in legal arguments?

Private Legal Transplant: Multinational Enterprises as Proxies of Legal Homogenisation

Tomaso Ferrando

Abstract: Recent decades have been characterised by a surge in foreign direct investments and the expansion of global production networks as a new model of production. However, while hundreds of studies have been produced, little attention has been paid to the legal transformations that are taking place whenever transnational enterprises (TNEs) physically or contractually occupy space within national legal orders. In this article, I expand the scope of the traditional theory of legal transplant to look at foreign direct investments and codes of conduct, and conclude that they create special legal zones—separate sub-regimes where TNEs exercise their de facto jurisdiction. Thus, looking at the micro-mechanisms of legal reproduction we discover the limitedness of traditional theories of legal transplant and that, while critics of legal transplant stand in front of their houses to fight against the hegemony of legal and cultural homogenisation, their enemy is entering by the back door.

The Global Regime of Investor Rights: Return to the Standards of Civilised Justice?

David Schneiderman

Abstract: The capital-exporting states of the North Atlantic long insisted that the standards of civilised justice mandated that capital-importing states respect the property rights of their nationals engaged in commercial enterprise abroad. Only a single North Atlantic conception of civilisation worked to provide content for this purported international standard, even as that content was contested by capital-importing states from Latin America and elsewhere. It is said that the construction of a new global legal regime for the promotion and protection of foreign investment, made up of some of some 2,800 bilateral and regional investment treaties, has rendered that debate redundant. The meaning to be attributed to the standards of protection contained in these treaties, however, remains hotly contested by states from the global South. In an attempt to resolve these disputes, scholars are resorting to the law of economically powerful states of the global North, employing methodologies reminiscent of those prevalent in the era of civilised justice

Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the List

Gavin Sullivan

Abstract: This article examines the UN 1267 Al-Qaida sanctions regime as a technique of global security listing and form of transnational law with distinct legal ordering processes. Conventional literatures frame these sanctions in formalist terms, flattening their complexity. Understanding their qualities and effects demands a dynamic approach capable of grasping how global law unfolds in each of its constitutive dimensions—normative, temporal and spatial. To that end, this paper develops an analytical framework of transnational legal assemblage and deploys it to examine (i) the proposed changes to EU court rules to enable the handling of secret intelligence and (ii) the fortification of exceptional space for pre-emptive security action. Situating this regime within a contested and emergent field of transnational legal assemblage renders it more variegated and contingent than ordinarily thought, opening up different ways of framing the accountability problems, authority claims, normative conflicts and governance practices of global security law.

Establishing the Argumentative DNA of International Law: A Cubistic View on the Rule of Treaty Interpretation and its Underlying Legal Culture(s)

Christian Djeffal

Abstract: There is an increasing tendency to frame international legal discourse in terms of regional designations. We speak, for example, of European or American approaches or of Latin American international law. This development could seriously impact the perception of international law. The present article attempts to deepen the understanding of what happens when we think about international law and international legal theory in national or regional terms. The article looks at different approaches to treaty interpretation which have been framed as European and American, to see how this impacts on international legal discourse. In a first step, the two approaches at the Vienna Conference on the Law of Treaties will be explained. Secondly, two narratives will be developed to describe what happened in Vienna in turn as European/American or as international legal discourse. The third part reflects on the consequences of framing concepts and theories in this way, with particular reference to the rules of treaty interpretation.