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I’ve been pondering the Jessup problem today from a purely abstract perspective. I’ve been thinking about what the problem isn’t: the issues that it decided to ignore instead of explore.

The problem, although focused on international investment law in part, has not raised the three big questions of international investment law that are at the forefront today.

Firstly, there is no connection to the growing academic writing on the interaction between human rights and development. International investment law has long been criticised for focusing narrowly on the commercial and economic dimensions of investment and being divorced from its human context. There is a growing body of literature talking about reconciling these two strands of international law and for me this year’s problem would have been a great vehicle to explore this question.

Secondly there is the intriguing connection between the private obligations incurred by the parties, the nature of the BIT as an instrument of PIL and the transformative power of the ‘umbrella’ clause to upgrade contractual obligations into international legal obligations for states, even if they didn’t sign the underlying contract. This is a great secondary issue and there is plenty of material for a keen fight from both sides.

Finally there is the interesting jurisprudential question of how an individual has third party rights under international instruments, and how individuals have gone from objects to subjects in international law with the power to bring proceedings through the likes of ICSID and various IHR tribunals. I know at least one English decision that found this anomaly unexplained, and yet it goes to the heart of the idea of international investment law. The reason we have international investment law is because third party rights are thought to be directly enforceable but no theory has been convincingly articulated (to my knowledge) that explains exactly why this is the case.

I do recognise that this is my list of interesting issues in international investment law, and the problem drafters are entitled to their own list. There is a marked need to be more realistic with what can be expected from students coming to grips with a large and rapidly evolving area of law outside the remit of many public international law classrooms. That said, it would be better if the problem engaged at least one of these contemporary issues.

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One Comment

    • Chaitanya Safaya
    • Posted December 8, 2009 at 2:34 am
    • Permalink

    Finally a post about the season’s Jessup Problem…. was begining to wonder whether you were even going to raise the topic ….;)


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