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Home Archive for category "Sources of International Law" (Page 7)

Customary International Law as a Dance Floor: Part II

Published on April 15, 2014        Author: 

The first part of this blog post commended the self-restraint of the ILC Special Rapporteur on the identification of customary international law. It simultaneously argued that the work of the ILC, somewhat paradoxically, laid bare a formidable emancipatory fervour at play outside the Palais des Nations. It is as if the intellectual prison of custom was gradually being turned into a large dance floor where (almost) everything goes. The following observations substantiate that claim and shed light on some of the consequences of this ongoing revelling.

Hunting (and finding) practice everywhere

It has long been accepted that the myth of induction in the theory of customary international law was more difficult to uphold in relation to opinio juris. This is why the subjective element has always been the object of the most severe criticisms or reservations. Yet, international legal scholars have started to realise that the myth of induction is not less difficult to vindicate in connection to the objective element, i.e. practice. As the Nicaragua decision famously taught us, how can one possibly ascertain the unascertainable, that is an intangible practice of abstention? Since the great majority of rules of international law are of a prohibitive character, the establishment of customary international law very often requires a speculative venture into nothingness. Confronted with this overdue realisation that practice – especially with respect to prohibitive rules – was not more easily captured inductively than opinio juris, international lawyers have been forced to resort to all new sorts of nets and traps to hunt and capture practice where there was none.

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Customary International Law as a Dance Floor: Part I

Published on April 14, 2014        Author: 

International lawyers’ thirst for argumentative freedom seems unquenchable. Nowhere is this more conspicuous than in the debate unfolding around the current work of the International Law Commission (hereafter ILC) on the identification of customary international law. Indeed, whilst the ILC has espoused a rather self-restrained approach so far, its study on the identification of customary international law has laid bare the prodigious emancipatory fervour at work outside the Palais des Nations. Particularly remarkable is the widespread presupposition that, in order to allow customary international law to serve the various agendas of ambitious 21st century international lawyers, one can simply toss out some of the elementary constraints around which the 20th century modern theory of customary international law had been shaped.

As this short note will argue, the emancipation from the traditional theory of customary international law at play in international legal scholarship, and unveiled by the current work of the ILC, is perplexing. This is certainly not because the traditional and modern theory of customary law should be redeemed. The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. What is perplexing is that international lawyers may currently be replacing the duplicitous prison of customary international law with a dance floor where (almost) anything goes while still believing that this uncomplicated discourse-production technique can serve all their – sometimes extravagant – ambitions. It is contended in the following observations that this argumentative freedom is not only bound to be short-lived but may also end up depriving international lawyers of what has so far been a surprisingly useful discursive technique to create authority and make demands of the world.

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Saar Papier v Poland: Comparative Public Law and the Second-Ever Investment Treaty Award

Published on February 3, 2014        Author: 

            Jarrod Hepburn is a Lecturer in Law at the University of Exeter, UK.

There has been much discussion in recent years – and in recent weeks on this blog – of the potential for investment treaty arbitration to benefit from a ‘comparative public law’ approach. In brief, the approach conceives of investment treaty arbitration as a form of public law, and calls for tribunals to draw on comparative domestic constitutional and administrative law, as well as other regimes of international public law such as WTO law and human rights law, to give content to the often vaguely-worded standards of typical investment treaties.

In the midst of contemporary enthusiasm for comparative public law, it is tempting to think that the approach is a new one that has been growing in prominence only over the last few years. However, this week brings news from Investment Arbitration Reporter that an UNCITRAL-rules investment treaty award dating from 1995, Saar Papier Vertriebs GmbH v Poland, has been unearthed. Amongst other aspects detailed by IAReporter, the case is particularly notable for its explicit use of domestic administrative law to interpret the provisions on indirect expropriation in the Germany-Poland BIT.

Indeed, this newly-uncovered investment treaty award – only the second ever (currently) known to be rendered, following AAPL v Sri Lanka in 1990 – contains intriguing indications that the comparative public law approach is a practically useful one for investment treaty arbitration. Furthermore, the age of this award raises the tempting view that, rather than being a new development in the field, comparative public law has been there all along.

However, as I discuss below, despite the treaty context of the claim, it is unclear whether the Saar Papier tribunal considered itself to be applying international law. Without this international law framework, it becomes more difficult to characterise the case as an instance of comparative public law at work. Read the rest of this entry…

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The Public Law Approach in the Practice of Investment Treaty Arbitration

Published on January 22, 2014        Author: 

In my last post, I discussed how comparative public law methodology could inform the resolution of investor-State disputes and thus help to reform the system from within. This may sound like a view from the ivory tower. In this post I will first discuss why arbitrators have an incentive to make use of such a methodology and, second, point to existing cases in which tribunals have already adopted a comparative public law framework.

System-Internal Reform and Identity Change

The success of using comparative public law as a system-internal reform strategy depends on the extent to which those active in practice endorse it. Enculturating public law thinking will need an identity change among arbitrators, arbitral institutions, annulment committees, and disputing parties. But why should a change in thinking take place, if there is nobody who coerces arbitrators to incorporate public law thinking or parties to develop their submissions on the basis of comparative public law? Do arbitrators not even have an incentive to keep the system running in a way that it maximizes the benefits of investors as claimants, and in turn, the arbitrators’ own interest in being reappointed? This is what critics like Gus Van Harten argue. In his view,

the novel situation in which claims can be brought by only one class of parties, and only the other class can be found to have violated the treaty, provides investment treaty arbitrators (including those who are state-appointed) with an incentive to favour claimants in order to advance the interests of the industry and their position within it.

Appointment of Arbitrators as a Source of Change

My view is different. I think that the one-off nature of arbitration and the appointment mechanism for arbitrators have a great potential for bringing change to the system. Read the rest of this entry…

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Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I

Published on November 1, 2013        Author: 

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Introduction: The draft GA resolution on privacy on the Internet

At the end of October 2013, a draft General Assembly resolution calling for the right to privacy on the Internet was sponsored by Brazil and Germany. (photo: a panopticon, credit)

The draft resolution reaffirms the human right to privacy. It calls upon states to take measures to put an end to violations of these rights (operative para. 4 b), calls upon states to review their procedures, practices and legislation concerning the extra-territorial surveillance of private communications (para. 4 b) and calls upon states to establish independent oversight mechanisms capable of ensuring the transparency and accountability of state surveillance of communications (para. 4 d).

Although the draft resolution does not mention the United States or the National Security Agency (NSA), it is indirectly reacting against the NSA’s recent espionage and surveillance activities conducted in a number of European states, including France, Italy, and Spain. This two-part post will focus on surveillance of German officials including the chancellor Angela Merkel and of ordinary persons in Germany by way of example. Spying on government officials concerns general international law, which will be the focus of Part I of this post. Part II will focus on the bugging of the communication of private persons, which implicates human rights law.

Breach of international law vis-à-vis the surveilled states

The interception of communication by government officials, agents, and authorities seems to constitute espionage. However, there are no specific international law norms that would contain or regulate espionage.

Spying has been more common (and more acceptable under international law) during war and under the international rules of armed conflict. If the United States seek to justify their surveillance activities by pointing to the “global war on terror” or, to use the term employed by former US legal adviser Harold Koh, “armed conflict with Al Qaeda, as well as the Taliban and associated forces”, the US would first have to show that there is indeed, in Germany, an armed conflict of this type. This seems difficult to demonstrate because the geographic and substantive nexus to the battlefield is lacking. Read the rest of this entry…

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Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs

Published on August 25, 2013        Author: 

In response to my recent post on whether the ICC can prosecute for use of chemical weapons in Syria,  my friend Kevin Jon Heller raises an important issue of treaty interpretation over at Opinio Juris. His comments to my previous post set out the issue quite clearly: should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty? Also Dov Jacobs, in a typically excellent post at Spreading the Jam, raises the point about whether the VCLT applies to the ICC Statute at all.

My answer to Kevin’s question is yes! Ordinary meaning of a treaty text should trump the supposed intention of the parties to the treaty. This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so. I agree with Dov’s point but only to a point. I do not think the VCLT rules on treaty interpretation should apply in their entirety to the ICC Statute but that does not mean they do not apply at all. I discussed these points as comments to my earlier post but thought it would be useful to make my responses a separate post.

The Usefulness/Uselessness of Drafting History and Intention of the Parties

The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.

Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two people who were members of a particular State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and that takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to particular provisions of the Rome Statute! Read the rest of this entry…

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Custom, Public Law and the Human Rights Analogy

Published on August 14, 2013        Author: 

anthea2Anthea Roberts is a Senior Lecturer in Law at the London School of Economics and a Professor of Law at Columbia Law School.

I always enjoy reading Martins Paparinskis’ work and have read enough of it to know that I can count on him to have (1) written about questions that are of interest to me, (2) engaged in careful analysis, and (3) researched the hell out of the issue. Paparinskis’ breadth across investment treaty law, general issues of international law like state responsibility, and case law in specific fields like human rights law, is truly impressive. I don’t plan to push Paparinskis on his central thesis.  Instead I want to ask three broader questions about how international law is developed and interpreted.

First, Paparinskis begins and ends his book by endorsing Jennings’ quote that the meaning of rules cannot be deduced a priori but instead “must be hammered out in the practice of Governments and by the familiar process of the development of law through its application by international tribunals” (pp 6 and 259). I agree with this point. In practice, however, we see extensive reference to judicial and arbitral decisions, including some that say they are interpreting treaty provisions as free standing norms and others that say they are interpreting the treaty in light of custom. But we see almost no discussion of the actual practice of governments, including in the latter type of case law. Why is that?

One reason is that the test for establishing custom is problematic. Customary international law is ostensibly made through state practice and opinio juris. But practice can be hard to find and cumbersome or difficult to collect. Paparinskis himself notes that the form of practice that we are most likely to see in the investment treaty context is pleadings by states, but this source has a number of shortcomings, including that pleadings are likely to be made by some states frequently and others rarely or not at all, and pleadings tend not to be made publicly available (pp 144-146, 171). (NAFTA is a notable and welcome exception to the latter point.)

Even when we can find smatterings of practice, it is almost impossible to collect real evidence of (1) general and consistent state practice followed out of (2) a sense of legal obligation. Even when people say that they are finding custom, they are usually relying on short cuts, such as referring to case law that says something is custom, General Assembly resolutions that declare something to be custom, or academic articles that opine that something is custom. Almost no one actually “finds” custom. Instead, arbitrators, academics and counsel typically refer to other sources that supposedly have already “found” custom.

The rules for determining custom are not a good description of what any of us actually do. Instead, they are largely used to critique the work of others. Read the rest of this entry…

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Should the International Law Commission Overrule the ICJ in its Articles on Immunity of State Officials from Foreign Criminal Jurisdiction?

Published on August 5, 2013        Author: 

In the current session of the International Law Commission (ILC), the Commission has continued its work on the immunity of State officials from foreign criminal jurisdiction. In the first part of the ILC’s 2013 session, the Drafting Committee of the ILC adopted three draft articles on immunity of State officials. Those draft articles deal only with the scope of the ILC’s project (what is in and what is out) and with immunity ratione personae. On the latter, the draft articles set out the persons enjoying immunity ratione personae and the scope of that type of immunity. Those draft articles adopted thus far do not address the scope of immunity ratione materiae from foreign criminal jurisdiction. Although the ILC’s work is still at an early stage, the Drafting Committee has already made one significant decision. Draft Article 3 provides that:

“Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.”

In this provision, the Drafting Committee has maintained the view that the immunity ratione personae applies to the so-called troika of high ranking State officials that the Vienna Convention on the Law of Treaties establishes as having a plenary or general competence to conclude treaties. There have been arguments that officials outside the troika (eg Ministers of Defence or of Trade) should also be granted immunity ratione personae, and indeed some domestic courts (eg in the UK ) have done so. The ILC seems set to reject this expanded view of immunity ratione personae and, in my view, rightly so.

What is more controversial is whether Foreign Minsters should be in this list. In taking the view that Foreign Ministers belong in this category, the ILC’s Drafting Committee has adopted the view of the International Court of Justice in the Arrest Warrant case (2002). That case concerned the immunity of the Minister for Foreign Affairs and the ICJ stated that the Minister for Foreign Affairs (like the Head of State and Head of Government) has immunity by virtue of that office, and while in office, even when it is alleged that he has committed international crimes. The ICJ went on to hold that the Foreign Minister was immune from foreign criminal jurisdiction even if abroad on a private visit.

The immunity ratione personae of serving Heads of State and Heads of Government is not particularly controversial. However, opinion is divided as to whether the Foreign Minister should be placed in the same category (even within the ILC – see the Drafting Committee Report ; and among States too  – see here para. 58 ). In the Arrest Warrant case, the ICJ did not provide any State practice in support for the view that the Foreign Minister has immunity ratione personae under customary international law. I argue below that the ILC should consider whether the ICJ got customary law right and should consider departing from the ICJ’s decision. Read the rest of this entry…

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The Ruins of the Sources Theory and the Garden of Eden: A Rejoinder to Carlos Esposito and Philip Allott

Published on December 14, 2012        Author: 

I feel indebted to Carlos Esposito and Philip Allott who have taken so much of their – precious – time to engage with the argument developed in my book Formalism and the Sources of International Law. In a professional community where constant solicitation and correlative overcommitment have become pathological, taking pains to engage with and constructively criticize peers’ works amounts to a manifestation of respect which, coming from such highly esteemed figures, is greatly flattering. I simultaneously rejoice at the fact that their – deliciously phrased and doled out – criticisms touch on the very points which, in my view, have always deserved to be debated across the interpretative community of international law. In this brief rejoinder, I shall limit myself to mention a few of them and sketch out my thoughts on the matter.

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Comment on d’Aspremont’s Formalism and the Sources of International Law: We Don’t Just Talk Past Each Other; We Disagree!

Published on December 13, 2012        Author: 

Jean d’Aspremont is concerned with the effects of the Babel syndrome created by legal pluralism. He is bewildered that international scholars ‘talk past each other’: the impression that international legal scholarship has become “a cluster of different scholarly communities, each using different criteria for the ascertainment of international legal rules” (3). This is the justification for his impressive intellectual effort to present a ‘theory of the ascertainment of legal rules’ and engage in the politics of formalism (29).

His theory is rooted in Herbert Hart’s famous source and social theses, which are reinterpreted by d’Aspremont to fit international law. In d’Aspremont’s theory, “law-ascertainment in international law must be conceived independently of article 38 [of the ICJ Statute], which was not only conceived to serve another purpose, but also leaves too much room for non-formal law-ascertainment”(150). He favours the use of written linguistic indicators (formal law-ascertainment is only possible for rules enshrined in a written instrument) to guarantee formal law-ascertainment in international law and move away from intent-based systems to determine international legal rules.

D’Aspremont affirms that his proposal amounts to “a complete reversal of our theoretical perspectives which allows the ascertainment of treaties and other international legal acts to do away with the speculations inherent in the establishment of intent and makes it exclusively dependent on the use of linguistic indicators” (192). The source thesis, by which rules are ascertained through their pedigree, is completed by the social thesis, which provides the foundations for the formal law-ascertainment of rules in the social practice of law-applying authorities. That is, in a nutshell, D’Aspremont’s recipe to secure true common legal language in “an age of pluralized normativity” (221), a goal that cannot be achieved by other techniques of law identification based on impact, compliance, process, or intent.

A blog post is, of course, not the ideal medium to review in detail the many interesting points raised by d’Aspremont in his encyclopedic, often complex, but absolutely remarkable piece of scholarship. I would rather advance three interconnected comments on some of the more controversial aspects of his book.

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