Hostname: page-component-8448b6f56d-m8qmq Total loading time: 0 Render date: 2024-04-18T23:01:30.323Z Has data issue: false hasContentIssue false
  • English
  • Français

The contractualisation of public international law

Published online by Cambridge University Press:  20 May 2021

Ilias Bantekas
Ilias Bantekas*
Affiliation:
Professor of Transnational Law, Hamad bin Khalifa University (Qatar Foundation) College of Law and Adjunct Professor, Georgetown University, Edmund A Walsh School of Foreign Service, Qatar
*
*Corresponding author. E-mail: ibantekas@hbku.edu.qa
Get access Rights & Permissions [Opens in a new window]

Extract

This short paper intends to set out a general theory underpinning the process of contractualisation of public international law. In doing so, it explains that this has chiefly been engineered through the establishment of a third sphere of regulation – in addition to the spheres of domestic law(s) and international law – namely transnational law. Both private actors and states operate through this sphere, chiefly because of its flexibility, decreased transaction costs and access to capital (which is scarce in the other two spheres). These benefits of transacting in the transnational-law sphere and the contractualisation of pertinent relationships come at a cost. Such a cost, from the perspective of human rights and parliamentary sovereignty, is explored by reference to two case-studies. The second of these, on the outsourcing of indigenous land rights, is predicated on the research and observations offered by Bhatt (2020).

Type
Reviews Symposium
Information
International Journal of Law in Context , Volume 17 , Special Issue 1: Celebration of Peter Fitzpatrick and his Scholarship , March 2021 , pp. 100 - 106
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Bantekas, I (2018) The right to unilateral repudiation of odious, illegal and illegitimate sovereign debt as a human rights defence. In Bantekas, I and Lumina, C (eds), Sovereign Debt and Human Rights. Oxford: Oxford University Press, p. 536.CrossRefGoogle Scholar
Bantekas, I (2020) Article 28. In Bantekas, I et al. (eds), UNCITRAL Model Law on International Commercial Arbitration: A Commentary. Cambridge: Cambridge University Press, pp. 732–757.CrossRefGoogle Scholar
Bantekas, I and Oette, L (2020) International Human Rights Law and Practice, 3rd edn. Cambridge: Cambridge University Press.10.1017/9781108612524CrossRefGoogle Scholar
Bhatt, K (2020) Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Cuervo-Cazurra, A et al. (2014) Governments as owners: state owned multinational companies. Journal of International Business Studies 45, 919–942.CrossRefGoogle Scholar
Gaissmaier, W and Gigerenzer, G (2012) 9/11, Act II: A fine-grained analysis of regional variations in traffic fatalities in the aftermath of the terrorist attacks. Psychological Science 23, 1449–1454.CrossRefGoogle ScholarPubMed
Jolls, C, Sunstein, CR and Thaler, RH (1998) A behavioral approach to law and economics. Stanford Law Review 50, 1471–1550.CrossRefGoogle Scholar
Kahneman D and Thaler, RH (2006) Anomalies: utility maximization and experienced utility. Journal of Economic Perspectives 20, 221–234.CrossRefGoogle Scholar
Klass, G (2014) Efficient breach. In Klass, G, Letsas, G and Saprai, P (eds), The Philosophical Foundations of Contract Law. Oxford: Oxford University Press, p. 362–387.CrossRefGoogle Scholar
Kurlantzik, J (2016) State Capitalism: How the Return of Statism Is Transforming the World. Oxford: Oxford University Press.Google Scholar
Markakis, M and Dermine, P (2018) Bailouts, the legal status of memoranda of understanding, and the scope of application of the EU Charter: Florescu. Common Market Law Review 55, 643–672.Google Scholar
Mouzas, S and Ford, D (2007) Contracting in asymmetric relationships: the role of framework contracts. IMP Journal 13, 42–63.Google Scholar
Salacuse, JW (1999) How should the lamb negotiate with the lion. In Kolb, DM (ed.), Negotiation Eclectics: Essays in Memory of Jeffrey Rubin. Cambridge, MA: PON Books, pp. 87–99.Google Scholar
Teubner, G (1997) Global Bukowina: legal pluralism in the world society. In Teubner, G (ed.), Global Law without a State. Aldershot: Dartmouth, pp. 3–28.Google Scholar
Vandevelde, KJ (2000) The economics of bilateral investment treaties. Harvard International Law Journal 41, 469–502.Google Scholar
Villaroman, N (2009) The loss of sovereignty: how international debt relief mechanisms undermine economic self-determination. Journal of Politics and Law 2, 3–16.CrossRefGoogle Scholar