Analysis

The national policy outlined in the Economic Transformation Act No. 45 of 2024 (the Act or the ET Act ) identifies promoting foreign investment as a key driver in Sri Lanka’s economic transformation. It further underscores the need to attract export-oriented foreign direct investment (FDI) to support the ‘growth of non-debt creating inflows to the economy’. The policy sets forth two specific investment goals. The first is to increase the country’s net FDI inflow to at least five per cent of Gross Domestic Production by the year 2030. The second is to ensure that at least forty per cent of the country’s net FDI is in exports of goods or services by the same year. Achieving these goals requires Sri Lanka to create a conducive business environment. The preamble to the ET Act also emphasizes the need for a law that fosters an investment-friendly environment within the country. It further affirms Sri Lanka’s commitment to establish ‘a transparent, inclusive, and rules-based system that promotes fair and equitable treatment’ for both domestic and foreign investors. To that effect, the ET Act provides for a comprehensive set of investment guarantees. Yet, they mainly focus on protecting the interests of foreign investors and placing them in an advantaged position relative to domestic investors. The idea behind prioritizing investor protection is to ostensibly promote FDI which has been identified as a key driver of Sri Lanka’s economic growth in the post-economic crisis era. Thus, the ET Act manifests the structural biases inherent in international law on foreign investment while perpetuating the long-standing power disparity between foreign and domestic investors by embedding it within Sri Lanka’s domestic legal system.

By contrast, the reciprocal tariffs are an unprecedented reversal not only of the US’s commitment to free trade, but also of its leadership in establishing the institutions overseeing this commitment like the World Trade Organization and its dispute settlement system. The trade war already triggered by these tariffs will irreversibly harm the poorest countries while fundamentally undermining the ability of global trading of the World Trade Organization to do anything about this. Even more, this policy is unlikely to meet one of its major objectives, reshoring manufacturing back to the US.

Discrepancies between the aspiration to apply ICL indiscriminately and the reality of its application described above drive perceptions of double standards. In this blog post, I will sketch the origins and context that led to double standards in ICL and consider how to differentiate double standards from selectivity and whataboutism. I will argue that recent developments illustrate double standards within the ICL framework. Given that the legitimacy of international criminal justice crucially depends on its impartial application, it remains paramount to work towards unmasking and remedying such double standards in ICL.

This blog post describes anecdotal and individual experiences. In future research I shall try to situate the experiences described below in the raging debate on whether or not academic institutions need to express solidarity - and act on it through boycotts, sanctions, etc. - in response to atrocities being committed anywhere in the world, a debate which is taking place on university campuses all over the world. This phenomenon deserves wider study, not only by international lawyers but also from various (multi)disciplinary perspectives. This blog post relates to ways in which academic institutions talk about and respond to alleged breaches of international law rather than double standards in international law as such.

This post examines this challenge for political organs and for international law through both a practical and theoretical lens. The practical side entails a recounting of the brief life of the UN’s International Commission of Human Rights Experts on Ethiopia (ICHREE), a commission of inquiry of the Human Rights Council on which I served in 2022 and 2023. The theoretical side builds on this case study to ask what is realistic and still principled to expect of political bodies in enforcing international law in a way that reduces the prospects of double standards. Drawing on the concept of impartiality and the unavoidability of selectivity, I argue that HRC inquiries should proceed on the basis of the gravity of violations to avoid double standards (which are distinct from selectivity).

International criminal justice is, by common consent, to at least some degree, victors’ justice. Some have argued, however, that victors’ justice might be giving way, over time, to a more universal justice also capable of holding victors accountable. This hopeful notion is often held up by others as a specifically liberal delusion. In my current project, however, I hope to use the examples of leftist “civil society tribunals” from the late Cold War to show that this idea - delusional or not - was once actually more popular amongst radical critics of the liberal international legal mainstream. Liberals, in this period, could thus be the “realists.” I conclude that geo-political realities do not only produce victors’ justice, they explain ideological responses towards it. They have changed how double standards are perceived.

While each post focuses on distinct contexts and frameworks, several overarching themes emerge. First, the posts reveal divergent conceptualizations and applications of the concepts of double standards in international legal practice, which in turn raises further questions about how best to examine the role of double standards in fields as disparate as international economic and criminal law. Second, the posts underscore the tension between the ideals of universality and the realities of power in international law: whether in the Human Rights Council, international criminal tribunals, or through state practice, double standards reveal the gap between abstract normative aspirations and political constraints that undermine consistent and principled action in specific cases. Third, the posts begin to identify the rhetorical and practical tools used to navigate or exploit this tension. From Esponda’s exploration of argumentative strategies to Schüller’s critique of procedural openings, the posts show how states and institutions justify selective actions while striving to maintain legitimacy. Fourth, some posts broach the question to what extent double standards are a remediable aspect of practice or, alternatively, an unavoidable feature of the international legal system.