For international lawyers, the rules of treaty interpretation in Articles 31-33 of the Vienna Convention are 'the only game in town'. The Vienna Convention rules have had the whip-hand in international legal scholarship and practice for several decades now, but is this almost imperiously held belief justified? Is it even relevant whether that is so, given their overwhelming practical importance? Behind the (contentious) claim that these rules are always binding law lies, however, a theoretically much more interesting, yet fundamentally unsustainable second argument.
It is that this set of norms somehow displace the process of ascertaining the meaning-content of written law, the legal epistemic process. The rules of interpretation are seen as regulating the legal process of the applicative construction of meaning by the organs of international law. It is, in the last instance, doctrine's attempt to control, via interpretation norms, how treaties are construed by tribunals.
The present article is a critique, on the basis of the Pure Theory of Law, of this orthodox international-legal conception of interpretation. There are severe limitations to what interpretation can do as a matter of legal theory. Given these limits, the article then proceeds to reconstruct the possible meanings and uses of the Vienna Convention rules.
Saturday, March 4, 2017
Kammerhofer: Taking the Rules of Interpretation Seriously, But Not Literally? A Theoretical Reconstruction of Orthodox Dogma
Friday, March 3, 2017
Over the last two decades, plea bargaining has spread beyond the countries where it originated — the United States and other common law jurisdictions — and has become a global phenomenon. Plea bargaining is spreading rapidly to civil law countries that previously viewed the practice with skepticism. And it has now arrived at international criminal courts.
While domestic plea bargaining is often limited to non-violent crimes, the international courts allow sentence negotiations for even the most heinous offenses, including genocide and crimes against humanity. Its use remains highly controversial, and debates about plea bargaining in international courts continue in court opinions and academic commentary. Is it appropriate to offer sentencing concessions to a defendant who pleads guilty to a heinous crime involving thousands of victims? How can the avoidance of a public trial be reconciled with some of the professed goals of international criminal law, including the goal of creating a more accurate historical record of the atrocities and that of providing victims with a voice in the process? Conversely, given the very limited resources and enforcement powers of international criminal courts, could these courts achieve any of their goals effectively without the use of plea bargaining?
The controversies surrounding plea bargaining at the international level are based in part on the unique features of international criminal justice, especially the horrific nature of the crimes prosecuted and the emphasis on uncovering the truth about these crimes. But the resistance to plea bargaining also stems from the fusion of inquisitorial and adversarial approaches at the international courts. The inquisitorial tradition of full and independent judicial inquiry into the facts of the case, which has influenced the procedures of international courts, helps explain why plea bargaining remains highly contested in that setting.
This article highlights the different approaches to plea bargaining in civil law/inquisitorial and common law/adversarial systems and how the blending of these traditions has influenced plea bargaining at the international criminal courts. It ends with an overview of the debates concerning plea bargaining in international criminal procedure and some recommendations for making the practice more consistent with the goals of international criminal justice.
Henry: Le Principe de nécessité militaire : Histoire et actualité d'une norme fondamentale du droit international humanitaire
Le présent ouvrage s’attache à analyser la portée du principe de nécessité militaire principalement à travers l’analyse des sources conventionnelles et de la pratique internationale. La richesse du matériau examiné permet d’attester du caractère de droit positif du principe, dont la portée est d’interdire tous les actes de belligérance qui ne sont pas strictement nécessaires pour atteindre un avantage militaire légitime.
Cette fonction prohibitive s’observe très tôt dans l’évolution historique du droit de la guerre. Contrairement à ce qui est parfois prétendu, le principe de nécessité militaire est en outre dénué de toute fonction dérogatoire. Il doit ainsi être distingué de la notion d’état de nécessité, propre au droit de la responsabilité « civile » ou pénale. Ainsi, malgré certaines résurgences éphémères, notamment dans le contexte de la mal nommée « guerre globale contre le terrorisme », la doctrine de la « raison de guerre » ou Kriegsraison, n’a jamais eu pignon sur rue.
L’analyse systématique des rapports entre le droit international humanitaire et d’autres branches du droit conduit à la réfutation des théories qui confèrent à la notion de nécessité militaire la faculté d’agir comme une source d’autorité juridique pour les belligérants, et donc de légitimation de la violence guerrière.
Jusqu’à la fin du XIXème siècle, le principe a joué un rôle central dans le cadre d’un droit avant tout coutumier, non écrit, marqué par son insécurité juridique. Dans le contexte actuel, caractérisé par un droit largement codifié, le principe de nécessité militaire trouve surtout son expression dans de nombreuses règles spécifiques. Au-delà de celles-ci, sa portée précise fait débat, en particulier en ce qui concerne la pratique controversée des exécutions ciblées. Les arguments sont toutefois nombreux, qui militent en faveur d’une application autonome du principe ayant pour effet de proscrire toute pratique militairement non nécessaire.
Thursday, March 2, 2017
- Bruce Bueno de Mesquita & Alastair Smith, Political Succession: A Model of Coups, Revolution, Purges, and Everyday Politics
- Nils-Christian Bormann, Lars-Erik Cederman, Manuel Vogt, Language, Religion, and Ethnic Civil War
- Mary-Kate Lizotte, Gender Differences in Support for Torture
- Richard C. Eichenberg & Richard J. Stoll, The Acceptability of War and Support for Defense Spending: Evidence from Fourteen Democracies, 2004–2013
- Andrew W. Bausch, Democracy and War Effort: An Experiment
- Jesse Dillon Savage, Military Size and the Effectiveness of Democracy Assistance
- Michael T. Hoffman& Elizabeth R. Nugent, Communal Religious Practice and Support for Armed Parties Evidence from Lebanon
- Jay Goodliffe & Darren Hawkins, Dependence Networks and the Diffusion of Domestic Political Institutions
In recent years, there have been more and more instances where national courts, in a principled manner, declared their unwillingness or inability to give suit to an ECtHR judgment. So far, those cases have initiated discussions about the Court’s ‘legitimacy’ and about the necessity of having a ‘dialogue between judges’. The conference takes a different approach, labelling such cases examples of ‘principled resistance’. The research question is whether those cases reveal a general pattern: Has the Court overstretched its competence by its evolutive interpretation so that cases of ‘principled resistance’ may be explained as reactions necessary to preserve national identity? Or is the current accumulation of such cases just a coincidence and are the underlying rationales too divergent to reveal a general pattern? The conference aims to give a dogmatic answer to those questions and thereby to help preserving the long-term functioning of the Convention.
Wednesday, March 1, 2017
Pour garantir l'équité des solutions juridiques ou politiques afférentes aux contentieux de délimitation des frontières, il importe qu'il y ait une parfaite adéquation entre le règlement des différends prévus par le droit international et le contexte tant politique, économique, géographique qu'historique. Le règlement diplomatique du différend de délimitation maritime entre la RDC et l'Angola sur la côte Atlantique ne peut pas présager d'une solution équitable garantissant des droits légitimes d'extension en mer d'un Etat côtier géographiquement désavantagé comme la RDC. Voici est un plaidoyer pour un règlement de ce différend devant la Cour pénale internationale de justice.
Interest in the history of human rights has grown enormously in recent years—but so too have the debates and conflicting accounts of the history. This workshop brings together leaders from a variety of disciplinary orientations whose work touches on the areas of human rights and history. The broader purpose of the workshop is to establish an interdisciplinary dialogue to better address the various meta-level problems, methodological obstacles, and intellectual roadblocks that have emerged within this relatively new subfield. Workshop participants will have the opportunity to work together to identify and propose the newest and most promising directions forward.
Civil wars have formed the vast majority of all armed conflicts since the Second World War. These civil wars have often been accompanied by the intervention of foreign states in favour of one or more of the parties. Such interventions raise various general questions regarding conflict classification in international humanitarian law (IHL), which are important because the relevant law that applies is shaped by whether a conflict is classified as international or non-international. This book provides a thorough examination of the theoretical basis of classification of conflicts in IHL, with special focus on the legal impact of armed foreign intervention in civil wars.
Noam Zamir enriches the discourse on IHL by providing an in-depth doctrinal examination of issues concerning conflict classification and examining recent civil wars with foreign interventions, such as the Libyan civil war (2011), Mali civil war (2012-2015) and the ongoing civil war in Yemen, and identifying potential solutions to different lacunae in this field.
Methymaki & Tzanakopoulos: Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers
What is the role of domestic courts in the ideal continuum commencing from sources (where the law begins its life) and ultimately ending at the enforcement of the law in a specific case? Where, if anywhere, do they fit in this continuum? Put differently, are domestic court decisions a cause (source) or an effect (enforcement) of international law? What we argue in this essay is that enforcement of international law is reflexive, rather than reactive. Reflexitvity is defined as a circular relationship between cause and effect, and there is indeed such a circular relationship — a ‘feedback loop’ — between the sources of international law and its enforcement: neither of the two can be finally identified as the ultimate cause or the ultimate effect. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause (sources) and of the effect (enforcement) of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of development of that law, reinforcing their position in the doctrine of sources.
- The Obligation to Investigate Violations of the Right to Life Reloaded: How Far Does it Go in Times of Armed Conflict?
- Introduced by Gabriella Citroni
- Luca Gervasoni, A contextual-functional approach to investigations into right to life violations in armed conflict
- Gloria Gaggioli, A legal approach to investigations of arbitrary deprivations of life in armed conflicts: The need for a dynamic understanding of the interplay between IHL and HRL
Tuesday, February 28, 2017
Duran & Bucheli: Holding Up the Empire: Colombia, American Oil Interests, and the 1921 Urrutia-Thomson Treaty
Why did the United States subsidize American multinationals' entry into countries treated as informal colonies? We study a classic case of American imperialism, the 1903 U.S. support of Panama's secession from Colombia and subsequent U.S. payment of the 1921 reparations that opened Colombia's oil fields to Standard Oil. We test Noel Maurer's empire trap hypothesis quantitatively. Archival and econometric evidence documents Colombia's threat to Standard Oil's sunk investment, which induced the multinational to build a supermajority coalition in the U.S. Senate to back a reparations treaty. Results support the empire trap hypothesis but point out important qualifications.
Nation states are increasingly asserting jurisdiction over criminal offenses that occur extraterritorially. In some instances, this can cause political tension and legal uncertainty, as the principles of jurisdiction under international law do not adequately resolve competing claims. In that context, this book considers principles of jurisdiction and mechanisms by which to achieve jurisdictional restraint under international law, including the possibilities presented by the abuse of rights doctrine.
Utilising a comparative approach, this book explores principles of jurisdiction, first under international law, and then in a comparative constitutional law context. Specifically, Danielle Ireland-Piper explores the ways in which domestic constitutional courts in Australia, India and the United States adjudicate extraterritorial criminal jurisdictions. Groundbreaking sections explore the abuse of rights doctrine in a common law context and the relationship between individual rights and the assertion of extraterritorial jurisdiction.
Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others. The lack of fully-settled guidance often matters significantly. That is because international law tolerates, for the most part, far less violent harm, devastation, and suppression in situations other than armed conflicts. Thus, certain measures governed by the laws and customs of war — including killing and capturing the enemy, destroying and seizing enemy property, and occupying foreign territory, all on a possibly large scale — would usually constitute grave violations of peacetime law.
This Legal Briefing details the legal considerations and analyzes the implications of that lack of settled guidance. It delves into the myriad (and often-inconsistent) provisions in treaty law, customary law, and relevant jurisprudence that purport to govern the end of war. Alongside the doctrinal analysis, this Briefing considers the changing concept of war and of what constitutes its end; evaluates diverse interests at stake in the continuation or close of conflict; and contextualizes the essentially political work of those who design the law.
In all, this Legal Briefing reveals that international law, as it now stands, provides insufficient guidance to precisely discern the end of many armed conflicts as a factual matter (when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of IHL provisions that instruct the end of application, and the inconsistency among such provisions thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end.
Fleshing out the criteria for the end of war is a considerable challenge. Clearly, many of the problems identified in this Briefing are first and foremost strategic and political. Yet, as part of a broader effort to strengthen international law’s claim to guide behavior in relation to war and protect affected populations, international lawyers must address the current confusion and inconsistencies that so often surround the end of armed conflict.
- Christian J. Tams, Stephan W. Schill & Rainer Hofmann, International Investment Law and the Global Financial Architecture: Identifying Linkages, Mapping Interactions
- Charles N Brower & Alexandra Goetz-Charlier, International Investment Arbitration and the Global Financial System: Are They ‘Yin’ and ‘Yang’ or Like Oil and Water?
- Matthias Goldmann, International Investment Law and Financial Regulation: Towards a Deliberative Approach
- Hayk Kupelyants, Police Powers of the State in Sovereign Debt Restructurings
- Christoph Ohler, Restructuring Sovereign Debt on the Basis of Collective Action Clauses
- Yanying Li, Sovereign Bond Disputes Before Investment Treaty Tribunals: Safeguarding the Exercise of Collective Action Clauses With a Single-Limb Voting Mechanism
- Marie Sudreau, Bilateral Investment Treaties and the Principles on Responsible Sovereign Lending and Borrowing: Working Together Towards the Provision of an International Legal Framework Addressing Sovereign Debt Issues?
- Maurice Mendelson & Martins Paparinskis, Bail-Ins and International Investment Law: In and Beyond Cyprus
- Anna De Luca, Bank Rescue Measures Under International Investment Law: What Role for the Principle Of Causation?
- Phoebus Athanassiou, Bits and Pieces: Reflections on the Relevance of Bits in Resolution-Related Litigation
- Prabhash Ranjan, Capital-Flow Management Measures and International Investment Law – Never the Twain Shall Meet?
- Anastasios Gourgourinis, Crisis as Force Majeure Under International Law and Eu Law: Defending Emergency Measures, À La Européenne, In Investment Arbitration Under Intra-Eu Bits
- Michael Wolfgang Müller, International Financial Institutions in Investment Law and Arbitration
Monday, February 27, 2017
A meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. In this paper, drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, I develop a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (d’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as a ‘hermeneutical enterprise’, my assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work — and, in particular, for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.
Köppen & d’Aspremont: Global Reform vs Regional Emancipation: The Principles on International Investment for Sustainable Development in Africa
Barrier-free trade, protection of human rights and economic development were the hallmarks and guiding principles of the international order created following the Second World War. The United States has been a leader in shaping the order into a global one. This current order is now undergoing change, with worldwide debate on what the future global order should look like.
How will the emerging order operate? Who will gain and who will lose? How will the new global order interact with the old international order? How are existing institutions including governments to respond? What is the right balance between national, local and global interests?
- Amitav Acharya, Rethinking demand, purpose and progress in global governance: an introduction
- Daniel Deudney, The great descent: 'global governance' in historical and theoretical perspective
- Miles Kahler, Who is liberal now? Rising powers and global norms
- Rodney Bruce Hall, The social purposes of global governance
- Andrew Mack, Conflicts and security
- Kathryn Sikkink, Human rights
- Ramesh Thakur, Atrocity crimes
- Susan Sell, Trade
- Eric Helleiner, Finance
- Sikina Jinnah, Climate
- Alexander Betts, Refugees
- David P. Fidler, Health
- Derrick Cogburn, Cyberspace and social media
- Amitav Acharya, The contested quest for global governance: conclusions and directions for further research
- Jaclyn Neo, Incorporating Human Rights: Mitigated Dualism and Interpretation in Malaysian Courts
- Koesrianti, An Overview of Indonesia's Protection of Women Migrant Workers
- Abdullah Al Faruqe, Judgment in Maritime Boundary Dispute Between Bangladesh and Myanmar: Significance and Implications Under International Law
- Kanami Ishibashi, The Fukushima Daiichi Nuclear Power Plant Accident: A Provisional Analysis and Survey of the Government's International and Domestic Response – Verification of the Accident and Road to Recovery in 2012
Sunday, February 26, 2017
- Anne Orford, Preface
- Holly Cullen, Joanna Harrington & Catherine Renshaw, Experts, networks and international law
- Suzanne Akila, Networks of protection
- Pammela Quinn Saunders, Advancing the conversation: non-judicial voices and the transnational judicial dialogue
- Philipp Kastner, International peace mediators: the normative involvement of an epistemic community
- Josephine Toop, Multilateral environmental agreements and regional fisheries management organisations: experts, networks and global administrative law principles
- Cameron S. G. Jefferies, Institutional expertise: reconsidering the role of scientific experts in the international conservation and management of cetaceans
- Tahnee Prior, Engaging complexity: legalising international arctic environmental governance
- Hitomi Kimura, Environmental government networks with Asian examples
- Cecily Rose, Non-binding instruments and democratic accountability
- Kei Nakajima, Traditional and modern designs for an international law of sovereign debt restructuring: a way forward
- Masahiro Kurosaki, The fight against impunity for core international crimes: reflections on the contribution of networked experts to a regime of aggravated state responsibility
- Focus: La Crisi Ucraina
- Vittorio Rocco di Torrepadula, La crisi ucraina: la ricerca di una soluzione sostenibile
- Gianfranco Tamburelli, The crisis in Ukraine
- Osservatorio Diritti Umani
- Salvatore Guzzi, L’incidenza della CEDU sull’eccezione dell’ordine pubblico
- Note e Commenti
- Elisabetta Mottese, La tutela “emersa” di un patrimonio sommerso: alcune riflessioni sulla protezione dei beni culturali subacquei nel diritto internazionale
- Gianfranco Gabriele, Osservazioni in tema di legislazioni nazionali sulle attività spaziali Nucera
With the resurgence of Asian nations such as China, current West-centric international law is changing in the twenty-first century. There is a pressing need to address these changes within international legal studies and overcome potential conflicts between existing and emerging powers. This structural transformation also demands a change in understanding of existing ideas and institutions. This book explores a 'trans-civilizational' approach to international law, supplementing and modifying two other prevalent perspectives: international and transnational. By considering these three layered viewpoints, this book highlights the complex phenomena surrounding the history and development of international law. The author also considers how international law operates and functions within diverse forums such as diplomatic negotiation, international organizations, and domestic political processes. This book will appeal to international law scholars and students, as well as those interested in the rise of non-Western powers and its impact on the prevalent ideas and institutions of the world.