Chapter 5 asks why the public continues to support restrictive policies given their considerable economic and rights costs. It identifies the predominant values informing and facilitating the liberal state’s governance of contemporary immigration and its implications for restricting human mobility by focusing on the effects of a threat environment in sustaining the onerous policies of the migration policy playing field. It argues that the persistence of these policies can largely be explained by the continued negative framing of these events by political elites and the mass media. In particular, their conflation of public safety and national security with immigration makes the issue more salient for the public, and the popular legitimacy of restrictive policies is sustained and endorsed by center and extreme Right politicians and political parties. The chapter concludes that the predominance of a security paradigm has shifted the baseline of values salience and realigned popular values and attitudes regarding immigration.

This chapter examines the context and consequences of the Registry ReVision project from the perspective of its management ideas and practices. While championed by Herman von Hebel, newly elected registrar of the court in 2013, ReVision was a long-term project of institutional transformation fostered and executed by external consultants, internal experts, judges, and staff members. While taking place in a wider context of court contention and dissent from certain quarters, ReVision told a uniquely managerial story about the court’s deficiencies and future organisational needs in ways that prioritised certain contexts, problems, and voices over others. And although its effect was to depoliticise the court, it simultaneously offered this effort as the extent and limit of the court’s own political ambitions. By surveying the actors, practices, and documentation of ReVision, this chapter offers an account of the reorganisation as a project of professional comfort.

Chapter 6 investigates the manifestations of the politicization and securitization of immigration over time in Spain, the UK, and the US, each of which experienced acts of terrorism between 2001 and 2005. The chapter’s objectives are to illuminate the trajectory of inter-political party competition regarding immigration and the propensity of the major parties to securitize and politicize immigration. It plots the interaction of the key variables of our immigration threat politics paradigm as these are illuminated in each country’s political context. Among these are the predominant threat frames, attitudinal influences, popular policy preferences, and patterns of inter-party politics regarding immigration. The evidence reveals that the shift from a predominant economic and/or cultural threat frame to a public safety one precipitates depolitization and a popular and an inter- party consensus regarding immigration in the near term. However, once restrictive policies are embedded and the salience of immigration recedes, familiar patterns of inter-party competition resume.

The chapter scrutinizes the recourse to legal witnesses on points of international law through the lens of the specific texture of customary international law. Part I will present and comparatively assess the abundance of the recourse in investment arbitration to expert witnesses on issues of international law; part II will then proceed to a theoretical analysis which will set, according to a formalist approach of that source of law, and test the hypothesis that international law witnesses in investment arbitration could well be justified when they deal with customary international law. It will conclude that, at most, customary norms may have been the Trojan horse of the recourse to international law experts in investment arbitration since international law witnesses are seldom relied on for the purposes of ascertaining the contents of customary international law. Once the relationship between customary law and expert witnesses will be discarded, Part III will examine an alternative justification which has more to do with the sociology of investment law and with its constant search for legitimacy, than with any formal analysis of the sources of international law.

The Conclusions summarize the book’s findings and revisits the question of whether contemporary liberal states can manage immigration and human mobility in a new security environment. Based on the evidence, we conclude that liberal states in the post-Cold War era are empowered to implement restrictive and illiberal policies by enlisting the cooperation of non-central state gatekeepers and the support of their publics. The chapter then considers the implications of the contemporary migration policy playing field for the civil liberties of citizens and migrants. It also surveys the effects of the 2019-22 Covid-19 pandemic on the course of human mobility worldwide and assesses whether they resonate with the assumptions of the book’s immigration threat politics paradigm. Several emergent inter-generational and values patterns around human mobility and immigration are then identified. We conclude with muted optimism about the liberal compromise elicited by the paradigm shift to embedded securitism. Despite its affront to the core values and principles upon which liberal democracies were founded, the expansion of the migration regulatory field reflects the consent of the governed.

When determining compensation as a form of reparation for the breach of a bilateral investment treaty, investment tribunals generally rely on the judgment of the Permanent Court of International Justice in the Factory at Chorzów case, and Article 36 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, as reflective of customary international law. Progressively, however, investment tribunals have developed a doctrine of ‘equitable considerations’ as a legal proposition capable of affecting the quantification of damages in ways not envisaged in the Factory at Chorzów case. This development is not uncomplicated. While equity may serve as a useful tool in the hands of arbitrators to provide a balanced legal reasoning and arrive at a more acceptable legal outcome, an unprincipled application of equity may have serious repercussions on the integrity of the arbitral award and undermine the legitimacy of the tribunal. Thus, this chapter seeks to provide an analytical framework for the operation of equitable considerations in the context of compensation in investor-State arbitration.

The chapter is based on a survey of state practice of CIL identification in connection with execution and annulment proceedings. The chapter proceeds in three main parts. Part I examines the nature of state practice in the form of judicial decisions, addressing, among others, the question of whether and to what extent a decision by a domestic court may be seen separately or concurrently as constitutive of practice, in the terms of ICJ Statute Article 38(1)(b), and/or as a subsidiary means, within the meaning of ICJ Statute Article 38(1)(d). Part II provides an overview of selected features of the surveyed body of state practice. This overview shows how domestic courts and states parties to execution and annulment proceedings before those courts approach CIL identification and rely on ICJ Statute Article 38(1)(a)-(c) to ascertain whether a certain source does constitute one of the sources of law recognised in those subparagraphs of ICJ Statute Article 38. Part III investigates the significance of the surveyed state practice, with a particular focus on some of the wider implications this state practice might have with respect to broader debates on CIL identification and the sources of international law, and shows a bi-directional interaction between general international law and international investment law.

This chapter examines the transformation of the concept of the ‘Minimum Standard of Treatment’ (MST) throughout the 20th century: its emergence, its subsequent decline and finally its recent ‘resurrection’. States now perceive the MST as ineffective in providing basic legal protection to foreign investors doing business abroad. It is in this historical context that these States began frenetically signing bilateral treaties for the promotion and protection of investments (‘BITs’) that provided clearer rules on investment protection. The vast majority of these BITs do not contain any reference to the MST. Instead, they include ‘Fair and Equitable Treatment’ (‘FET’) standard clauses. This chapter examines why States began using this expression instead of the MST. Many tribunals (notably in the context of NAFTA) interpreted FET clauses as providing investors with more extensive rights than the MST. This chapter examines States’ reaction to these awards and how the MST has been used by them to limit investors’ rights under FET clauses. In this respect, the most interesting and innovative FET clause is certainly Article 8.10 of the CETA which contains a closed list of elements which are considered by the Parties to embody the standard.

Do States owe a duty to compensate material loss to investors, when the loss is caused by acts covered by the defence of necessity? This is a difficult question, which has troubled international lawyers (as well as domestic law theorists and moral philosophers) for a long time. Investment tribunals too have been faced with this question. Indeed, the Articles on State Responsibility allow for the possibility that such compensation might be due. But they do not specify in which circumstances the duty arises. Unsurprisingly, investment tribunals have given this question widely different answers. Perhaps even more surprisingly, they have rarely queried the positive law status of this duty: they have, for the most part, foregone assessing evidence of customary law (or general principles) for this duty. Tribunals have either derives be duty by implication from the rule of necessity, denied its existence, or taken an agnostic stance. However, when the evidence is properly assessed, it is clear that much as such a duty would be desirable, it is not yet recognised as a matter of general customary law.

Chapter 3 identifies the numerous strategies the contemporary liberal states have pursued to navigate the cross-pressures engendered by the migration trilemma during the post-Cold War period, and especially since September 11th. Contesting scholarly claims that the liberal states cannot avert unwanted immigration, its main argument is that they have considerably reconciled the tensions inherent in the trilemma by enlisting and coopting non-central state actors at the intersection of human mobility and security. Specifically, they have forged bilateral and multilateral policy agreements and devolved many of their responsibilities for implementing immigration and human mobility policy to international, subnational and private sector actors. In pursuing this multifaceted course, the immigration policies of states have converged, and their burdens in managing their immigration-related responsibilities have been partially alleviated. But in doing so, the liberal norms inspiring their once steadfast commitments to maintaining relatively open borders and safeguarding citizen and immigrant rights have been compromised.