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EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part II)

Published on January 16, 2018        Author: 

Part II of a two-part post in the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

 

What did Japan say – and what did it not say? [Cont.]

[…]

What then does this single reference given tell us? What was Japan’s argument?  The text preceding the footnote states that in its Counter-Memorial Japan argues that resolutions of the kind under consideration ‘are not binding, and, therefore, irrelevant for the interpretation of Article VIII’ (d’Aspremont, p.1016). The Chapter of the Counter-Memorial quoted is however more limited: it is addressed to refutation of Australia’s argument that the resolutions rank as ‘subsequent agreement’ or ‘subsequent practice of the parties’ for purposes of Article 12 of the Vienna Convention on the Law of Treaties (an argument which was, as already noted, to be rejected by the Court). Japan’s argument on the point is in no way novel; and the question of Japan’s consent is not central, and not stressed. It is merely present in the reference to the need, under the terms of Article VI of the Whaling Convention, for consensus, if a resolution is to be anything more than a non-binding recommendation. It is hard to see any invocation of the doctrine of sources here.

Nor is there anything recognisable as reliance on sources in the oral argument of Japan, or even any emphasis on the lack of Japan’s lack of assent. In that argument the IWC resolutions were first dismissed (rather casually), not on the basis of lack of assent, but on the grounds that they were obsolete or superseded (see Boyle in CR 2013/15, pp. 54-55). Emphasis was laid on the freedom of a State to disregard resolutions of international bodies that merely recommend (see Pellet in CR 2013/16, pp.53-54, citing Judge Lauterpacht in Voting Procedure [1955] ICJ Rep 114-115), but with no reference to the lack of Japan’s consent as the reason for purely recommendatory status. Read the rest of this entry…

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EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part I)

Published on January 15, 2018        Author: 

Part I of a two-part post opening the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

The article by Professor Jean d’Aspremont, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘, is directed to the decision of the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) but is, in a number of ways, an unexpected commentary on that decision. The author concentrates his attention on what would seem to be a rather minor aspect of the controversy between the parties, and leaves aside all other elements of the case. He then builds on that point, an analysis of the parties’ arguments, and of the Court’s conclusions on the point, which, one suspects, both the parties and the Court would have great difficulty in recognizing as their own. The result is that Professor d’Aspremont appears to be criticising a wholly suppositious thesis, a chimera of his own construction, rather than the judgment actually delivered.

This criticism centres around what in the title of the article is called a ‘blurring of the lines between sources and interpretation’. In fuller terms, the distinction is between, in the first place, the ‘doctrine of sources’, which is ‘what allows norms and standards to be formally anchored in a legal order and generate therein the highest form of legal effect – that is, bindingness’ (p.1028). Against this, Professor d’Aspremont identifies a ‘doctrine of interpretation’: ‘legal relations between subjects of an international order can also be affected by interpretative effects’, which result from ‘an act of interpretation that is constrained not by the doctrine of sources but rather a doctrine of interpretation’(ibid.). This formulation, apparently unobjectionable, subsequently proves, however, to generate unnecessary problems, to be examined below. Read the rest of this entry…

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EJIL Debate: Jean d’Aspremont’s Article on the Blurring of Interpretation and Sources in the ICJ Case on Whaling in the Antarctic

Published on January 15, 2018        Author: 

The blog is happy to announce that over the next few days, we will host a discussion of Jean d’Aspremont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘. The debate will open this afternoon with Professor Hugh Thirlway’s reaction to  d’Aspremont’s article. We will continue the discussion tomorrow with Jean d’Aspremont’s response. On Wednesday, Maiko Meguro will bring the debate to a close with her reaction to the argumentative framework of ‘logic of interpretation’ and ‘logic of sources’ put forward by Professor d’Aspremont in his EJIL article and discussed by Hugh Thirlway in his rebuttal.

d’Aspremont’s article, which was published in the European Journal of International Law in November 2017, argues that the idea that the doctrine of sources enjoys a monopoly on the tracing of bindingness and does not directly constrain the interpretation of those standards and norms that it validates has been seriously eroded by the International Court of Justice in its 31 March 2014 judgment concerning Whaling in the Antarctic. d’Aspremont contends that the Court comes very close to calibrating the interpretive effects of the resolutions of the International Whaling Commission through the doctrine of sources. He explains, how this blurring between sources and interpretation is most unsettling given the efforts that the Court had invested, over the years, in consolidating two distinct doctrines – the doctrine of sources and the doctrine of interpretation.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

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New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Published on December 7, 2017        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

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A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”

Published on April 13, 2017        Author: 

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

It is a great pleasure to contribute to this mini-symposium on Miles Jackson’s monograph on the notion of complicity in international law. The book is a further testament to the growing importance of questions of ‘shared responsibility’ in international law, ie the harmful cooperation of several actors.

In his elegantly written book, Miles Jackson makes several important contributions. In particular, he has brought a comparative approach to questions of complicity in international law. Whereas most existing books on complicity focus either on state responsibility or international criminal law, Jackson aims to transcend this boundary and develop an overarching framework for complicity in international law. While Jackson is of course mindful of the structural differences between the two areas, his comparative approach nonetheless calls for some further discussion.

A second most original aspect of the book is its move beyond an inter-state focus in its treatment of state complicity. Jackson analyses if and to what extent international law imposes state responsibility for complicity with non-state actors. In this latter regard, he convincingly argues against an approach based on attribution. Read the rest of this entry…

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International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

Published on January 19, 2017        Author: 

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian. Read the rest of this entry…

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Asian States’ Participation in International Adjudication: Comments

Published on January 18, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting on Monday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Asia is a vast region and encompasses more States and a larger population than any other region in the world. Asia also presents historical, linguistic, cultural, and religious diversity, as well as wide-ranging stages of political evolution and economic development. Asia indeed defies an easy definition. It is therefore difficult to speak, in a general term, of Asia with respect to any subject. International law and institutions are no exception. There is a wide variation in Asian States’ engagement with international law and institutions. For example, many States in East Asia are actively participate in various international regimes and attach great importance to international cooperation. On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States. It should also be pointed out that Asian States’ attitudes towards international law and institutions are not static but evolving. In this comment, I will confine myself to Asian States’ participation in international adjudication, which may be considered one of the most revealing yardsticks to measure their attitudes toward international law and institutions.

Much has been said about the Asian States’ passivity towards international law and institutions. Various explanations have been given for such reticence, ranging from the Asian culture and tradition which prefer virtue and harmony to law and adjudication to the prevailing distrust of the law and institutions which were essentially a product of the Western civilization (and thus perceived to be biased in favour of the West) and in whose creation and developments Asian states did not play significant roles.

At least in terms of the number of disputes submitted to international adjudication and their political and legal context, it would be difficult to characterize the attitude of Asian States toward international law and adjudication as positive. For example, there had been only three cases involving Asian states that had been referred to the Permanent Court of International Justice during its entire period of activities (S.S. Wimbledon, 1923; Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1928; Interpretation of the Statute of the Memel Territory, 1932). The picture was not much different in the subsequent early period of the International Court of Justice (ICJ), during which many Asian States obtained independence mostly from the Western colonial powers. Iran was the first Asian State to appear before the ICJ in 1952 in the Anglo-Iranian Oil Co. case but Iran was taken to the Court by the United Kingdom. The Court eventually found that it lacked jurisdiction to entertain the dispute. Then India was the next Asian State to appear before the Court in the case concerning Right of Passage over Indian Territory in 1955. However, India was also taken to the Court by Portugal. In 1959, Cambodia instituted the proceedings against Thailand in the Temple of Preah Vihear case, and that was the first case involving the two Asian States before the ICJ. Subsequently in the 1970s, India and Pakistan were involved in the two cases before the Court (Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), 1972; Case concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973). In the 1980s, Iran was involved in two disputes with the United States before the ICJ. However, those instances were rather exceptions than the rules (US Dipolmatic and Consular Staff in Teheran (USA v. Iran), 1980; Aerial Incident of 3 July 1988 (Iran v. USA), 1989-1996 (discontinuance)).

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Clarity and Ambivalence: Asia and International Law

Published on January 17, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting yesterday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

One of the important developments in international law in the past few decades has been the increased understanding of approaches to it that do not arise from Western industrialised states. The work of scholars such as Anthony Angie, Lauri Mälksoo, Sundhya Pahuja, Balakrishnan Rajagopal, and others have been important in this regard. Therefore, the article by Simon Chesterman on ‘Asia’s Ambivalence about International Law and International Institutions: Past, Present and Future’ in the EJIL  is a timely engagement with an important aspect of this understanding.

Simon establishes the main issues very well and clearly. A combination of colonialism, treaty-making, recognition and armed conflict is shown to have created an ambivalence by key Asian states towards international law and international institutions. He offers a helpful and nuanced analysis without creating a false dichotomy between ‘Western’ and ‘Asian’ views. It is a pity that his article must have been finalised before 25 June 2016 when the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law. This Declaration has been seen as being a rejection of a view that these two states have a problematic relationship with international law and an assertion of an approach based on state sovereignty and non-intervention, as well showing broader differences on the international constitutional order: see here.

My main hesitation about this valuable article is the definition of ‘Asia’. Simon defines it as being ‘the 53 members of the Asia-Pacific Group at the UN’. However, he ignores the Pacific members (such as Fiji and Papua New Guinea) of this grouping and the Middle Eastern members (such as Iraq, Lebanon and Saudi Arabia), which together comprise nearly 45% of this group. This calls into question some of his reliance on figures and tables about Asia-Pacific participation in international institutions. For example, in the Pacific sub-region, some of the reluctance to ratify treaties and engage in international institutions may be due to their own institutional and human capacity. It would also have been interesting to learn more about the approaches of Singapore and Malaysia, which are economic powers in the region, and have appeared to take a very formalist approach to international law. Read the rest of this entry…

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Will the Asian Vision of International Law become Dominant in 2017?

Published on January 16, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

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Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! mini-symposium

Published on January 16, 2017        Author: 

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application. Read the rest of this entry…

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