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Home Archive for category "EJIL: Debate!" (Page 3)

State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 12, 2012        Author: 

Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.

The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.

Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.

Turkey as the Continuation of the Ottoman Empire

A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Published on June 15, 2012        Author: 

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the identification of general principles of international law that is quite different from the one I described as being the current dominant approach, and rather similar to the approach that I propose in my paper. Central to my argument is that comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another. The approach taken by Judge Shahabuddeen in Furundzija, and adopted by Aldo, seems compatible with the one I advance. I would propose the adoption of a more modest goal: rather than hoping to find ‘a common underlying sense of what is just in the circumstances’ as Judge Shahabuddeen would have it, I would suggest the identification of a reasonable, and reasonably just, solution to a legal problem. Nevertheless, Judge Shahabuddeen’s approach moves sharply away from a mechanical, or functional, approach to borrowing from municipal legal systems. I am less confident than Aldo regarding the extent to which this principle is reflected in what most international judges do, and what legal scholars say they ought to do, when it comes to general principles, though judges on international criminal tribunals are moving in interesting and promising directions.

I am not convinced that Aldo’s approach to comparative law provides appropriate guidance to international judges looking to learn from municipal law. Schmitthoff’s approach to comparative law, adopted by Aldo, is problematic in my view. I agree with Schmitthoff that comparative law is better described as a comparison among reactions of legal systems to a problem than as a comparison between legal rules and institutions, but I find that the second stage, the utilization of the results obtained, is question-begging. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Published on June 1, 2012        Author: 

Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.

 1. Introduction

This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of  inquiry to a single, specific legal system.

2. Comparative Law And The Ad Hoc Tribunals

In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that  “The  first  phase  consists  in  examining  the  reaction  of  a number  of  legal  systems  to  an  individual  legal  problem.  The second stage is concerned with the utilization of the results obtained  in  the  first  phase,  and  this  utilization  can  be  effected for a great variety of reasons.”

This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.

A. The Application Of Comparative Law By The Ad Hoc Tribunals

Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)

1. Comparative Law And Customary International Law

The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…

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General Principles and Comparative Law

Published on May 31, 2012        Author: 

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous. Another possible explanation is the highly unsatisfactory nature, both in theory and in practice, of the methodology currently applied to identify general principles of law. The debates at the international level regarding general principles map onto those at the municipal level concerning the ‘borrowing’ of rules from one legal system by another. It makes sense, therefore, to look into the controversies over ‘borrowing’ that play out in scholarship on comparative law, in order to gain some insights into the difficulties generated by the source general principles of law, as well as ways of alleviating these difficulties. I argue that particular attention ought to be paid to strands of comparative law scholarship which take issue with a functional approach – to put it starkly, an approach that treats legal rules as pieces that can be extracted from one machine and inserted into another – and which place emphasis on the processes through which legal systems can learn from one another.

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Discussion of Jaye Ellis “General Principles and Comparative Law”

Published on May 31, 2012        Author: 

Over the next few days, we will be hosting a discussion of one of the articles published in the last issue of the 2011 volume of European Journal of International Law. That issue included a paper by Jaye Ellis on “General Principles and Comparative Law”. Jaye is Associate Professor of Law and Associate Dean at McGill University’s Faculty of Law. Jaye posts a short  overview of her article later today. Tomorrow, Aldo Zammit Borda who is currently a PhD candidate at Trinity College, Dublin but formerly First Secretary at the Ministry of Foreign Affairs of Malta, and Legal Editor, Commonwealth Secretariat, London will comment on Prof. Ellis’ article. Readers are invited to join in the conversation.

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The Genre of Constitutionalization?

Published on August 10, 2010        Author: 

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to. Read the rest of this entry…

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The Constitutionalization of International Law: A rejoinder

Published on August 4, 2010        Author: 

Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here)Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. Read the rest of this entry…

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The Constitutionalization of International Law: Conclusions

Published on July 28, 2010        Author: 

Chapter 7  of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.

1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.

2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. Read the rest of this entry…

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Democracy beyond the state and the problem of too much democracy – Observations on Chapter 6: ‘Dual Democracy’

Published on July 27, 2010        Author: 

 In Chapter 6 of The Constitutionalization of International Law which deals with ‘Dual Democracy’, Anne Peters engages (see post here) with the challenges presented by regulation by non-state actors and the reduction in the importance of sovereign consent in international law to the practice of domestic democracy. The two-track solution depends on the democratization of domestic political systems (democracy within the state) and the democratization of international organizations and other non-state actors, principally through the introduction of parliamentary assemblies and consultation mechanisms (democracy beyond the state).

 International parliamentary assemblies might provide a useful addition to the global institutional architecture, but they would not ensure the democratization of global governance. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community constructed by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure the representation of the plurality of dominant political opinions within states and to compensate for the democratic deficit that results from the application of the principle of sovereign equality in international law-making (one-state; one vote, irrespective of population size). The most significant contribution would be in establishing an institutional mechanism to monitor the governance activities of global regulators and providing a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms. Read the rest of this entry…

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Thinking Politically about Global Constitutionalism

Published on July 22, 2010        Author: 

Jean L. Cohen is Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization at Columbia University.

I was asked to respond to the chapters of Anne Peters in the new volume, The Constitutionalisation of International Law. Peters’ work is comprehensive, diligent and impressive in its erudition and scope.  It gives a good overview of the arguments on all sides yet does not convince me.  I’ll summarize the general thesis and make some remarks along the way and in conclusion.

Peters’ chapter on Dual Democracy must be situated in the cosmopolitan camp.  Her thesis is that global constitutionalism requires democracy and that democracy must be dual: i.e. it must operate on two tracks: one statist, the other individualist, the former relating to governance within states, the latter to governance ‘above’ states. While it is not clear to me why global constitutionalism requires democracy (Much could depend on the concepts of constitution and constitutionalism which are not examined in these chapters. But whatever conception one works with, surely it is not convincing to equate constitutionalism and democracy: rather their interrelation requires serious theoretical and perhaps historical reflection).  Obviously the real thrust of the chapter is about imagining a feasible utopia of democratic global governance.  There’s no need to repeat the arguments as to the non-democratic character of international law-making or of global governance institutions.  Clearly the issue of legitimacy arises due to the expanded scope and reach of international/global law and governance.  For Peters, legitimacy means democratic legitimacy.  She usefully canvasses all the usual suspects in the democratic camp and comes up with her own distinctive position.  The strength of her position is that it avoids the substitution-alism of many models – cosmopolitan democracy does not replace democracy within states, global civil society does not replace domestic or global government, mechanisms of direct democracy do not replace mechanisms of representation or accountability.  Nor does her approach simply rest on the domestic analogy: she trys not to simply ratchet up democratic arrangements and mechanisms developed in democratic states to the globe or to international organizations (IOs) or in today’s parlance, global governance institutions (GGIs).  To be sure, she works with a strong conception of democratic principles—political equality, participation, inclusion of all governed, responsiveness and accountability of the governing actors and the sanction power of citizens to throw out politicians normally through elections.  But the dualistic conception is contrived to mesh with the dualism of the world order—i.e. as one that is and will remain composed of both states and individuals.  Thus against substitutes like theories of deliberation, participatory democracy or competitive democracy (ascribed to Dryzek, Pateman, and Pettit respectively) that allegedly should replace formal electoral democracy, she rightly argues that these do not on their own merit the label, democratic unless they hook up with formal i.e. electoral democratic mechanisms.

 How then to resolve the democratic deficit of international law?  So what is dual democracy?  Again, the constitutionalisation of international law in this chapter entails democratization which must occur on two distinct tracks. Read the rest of this entry…

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