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The International Court of Justice and Customary International Law: A Reply to Stefan Talmon

Published on November 30, 2015        Author: 

There is much to agree with in Professor Talmon’s article, which addresses the International Court of Justice’s methodology for the determination of rules of customary international law, and concludes that “the main method employed by the Court is neither induction nor deduction but, rather, assertion.” But there are some questionable aspects, including its conclusion.

The Court’s approach to the identification of rules of customary international law

Professor Talmon regrets the lack of discussion, both by the Court itself and by writers, of the methodology used by the Court to determine the existence, content and scope of rules of customary international law. But the Court has of course stated in its 2012 Jurisdictional Immunities of the State judgment that in order to determine the existence of a rule of customary international law “it must apply the criteria which it has repeatedly laid down for identifying a rule of customary international law” – as indeed it has. The Court recalls its pronouncements in the North Sea Continental Shelf and Continental Shelf (Libyan Arab Jamahiriya/Malta) cases, where it “made clear” that “the existence of a rule of customary international law requires that there be “a settled practice” together with opinio juris” (I.C.J. Reports 2012, p. 99, at p. 122, para. 55). It could well have cited to other decisions as well, among them Military and Paramilitary Activities in and against Nicaragua and Legality of the Threat or Use of Nuclear Weapons. A coherent methodology does come into sight in these (individually and even more so in the aggregate), even if not all questions relating to it have been fully addressed. It is one thing to suggest, as some have, that the Court does not consistently adhere to this stated methodology; it is a different thing altogether to argue, as Professor Talmon does, that the Court “has hardly ever stated” such methodology. Read the rest of this entry…

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Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Published on November 27, 2015        Author: 

Methodology is probably not the strong point of the International Court of Justice (ICJ) or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the ICJ has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the ICJ’s jurisprudence to the inductive and deductive method of law determination. In the Gulf of Maine case, a Chamber of the Court stated that ‘customary international law […] comprises a set of customary rules whose presence in the opinio juris of States can be tested by induction based on the analysis of a sufficiently extensive and convincing practice and not by deduction from preconceived ideas’ ([1984] ICJ Rep 246 [111]). The use of the words ‘can be’, rather than ‘is’, implies that customary international law rules can also be discovered deductively. That deduction is part of the ICJ’s methodological arsenal is demonstrated by the fact that in the North Sea Continental Shelf cases five judges used the deductive method in their separate or dissenting opinions. For example, Judge Tanaka stated that ‘[i]n the event that the customary law character of the principle of equidistance cannot be proved, there exists another reason which seems more cogent for recognizing this character. That is the deduction of the necessity of this principle from the fundamental concept of the continental shelf’ ([1969] ICJ Rep 179). In the ICJ’s more recent jurisprudence, the Arrest Warrant case is widely seen an example of deductive reasoning, while the Jurisdictional Immunities of the State case is regarded as a prime example of the Court using the inductive method.

It is not only the ICJ itself that has largely remained silent on its methodology for the determination of customary international law. The legal literature has also had little to say on this subject. The great debate in the 1960s between Georg Schwarzenberger and Wilfred Jenks over the right method in international adjudication remains an isolated incident. [See Jenks, The Prospects of International Adjudication (1964), at 617–662 (‘Inductive and Deductive Reasoning in International Adjudication’) & Georg Schwarzenberger, The Inductive Approach to International Law (1965), at 115–164 (‘The Inductive Approach Refuted?’)]  Jenks saw in Schwarzenberger’s inductive approach to international law ‘a challenge to creative jurisprudence’, while, for Schwarzenberger, the deductive method was nothing more than ‘judicial legislation’ in disguise. In view of the fact that determining the law always also means developing and, ultimately, creating the law, it is surprising that the question of the ICJ’s methodology has attracted such little interest.

The article aims to refocus attention on the methodology used by the ICJ when determining the rules of customary international law that it applies, and to highlight the role played by methodology in the development of customary international law. Read the rest of this entry…

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Discussion of Stefan Talmon’s “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”

Published on November 27, 2015        Author: 

I am delighted to announce that, over the next few days, we will be hosting a discussion of Professor Stefan Talmon’s (University of Bonn) recent article – “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” – which was published a few months ago in (2015) EJIL Issue no. 2 . As he explains in the abstract:

This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law.

Commenting on the article will be Sir Michael Wood, who is the International Law Commission’s Special Rapporteur on “The Identification of Customary International Law”, writing together with Omri Sender (of the World Bank); Harlan Grant Cohen (University of Georgia); and Fernando Lusa Bordin (University of Cambridge). They have all previously written brilliantly on customary international law. We are grateful to each of them for taking part in this discussion. As usual, comments by readers are welcome. Stefan’s article is freely available on the EJIL and OUP websites so do take a look at it in advance of the discussion.

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Authors’ Concluding Response: Assessing the Case for More Plurilateral Agreements

Published on October 2, 2015        Author: 

Editor’s Note:  This is the authors’ concluding response in a series of posts discussing the article in the current issue of EJIL Vol. 26 (2015) No 2, by Bernard Hoekman and Petros Mavroidis. The original post is here. See also the  posts  discussing the article by Junji Nakagawa, Diane Desierto, and Geraldo Vidigal.

We have profited a lot reading the responses to our article by our three colleagues. Undoubtedly, this discussion will help us streamline our thinking going forward, since we believe the discussion regarding the institutional design of the WTO is about to start. Indeed, the passage from the Tokyo round ‘GATT clubs’ approach to the ‘WTO single undertaking’ was not discussed in depth among the institutional stakeholders. It is high time it takes place now, and this is what we hope our contribution will help happen.

We would like at the outset to set the record straight regarding property rights on this issue. We claim no originality in making a case for more plurilateral agreements (PAs). The main contribution on this front is a paper by Robert Z. Lawrence (2006), to which we refer a number of times in our article, and which, surprisingly had been left unanswered. Lawrence brought together discussion that preceded him, and provided a clear framework to think in concrete policy terms about clubs within the multilateral system. Academic literature on ‘clubs’ or ‘codes’ (the term used during the Uruguay round, in the GATT, and more generally, “minilateral” liberalization and cooperation goes back to the 1980s). A notable contribution on this score is B. Yarborough and R. Yarborough (1992), Cooperation and Governance in International Trade: The Strategic Organizational Approach.

Our basic point, simply put is that there are three factors that all bolster the case for PAs, and the ensuing ‘club of clubs’ approach originally advocated by Lawrence almost ten years ago. These factors are:

  • the proliferation of PTAs (preferential trade agreements) following the advent of the WTO, that is, at a time when tariffs are at an all-time low. Modern PTAs deal to a significant extent with regulatory matters;
  • the geo-political dynamics associated with the rise of China and other emerging economies; and
  • the fact that the trade agenda increasingly centers on regulatory differences, an area where the ‘single undertaking’ approach has not proved to be much of a success.

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Whose Club Is It Anyway? PTAs 2.0 and the Creeping Non-Trade Rules

Published on October 1, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here and here. For the authors’ concluding response, see here.

Bernard Hoekman and Petros Mavroidis’s article comes at an important time for the WTO. Alternatives to the multilateral trade talks have always existed, both outside the WTO (PTAs) and within it (PAs). However, the repeated failure of Doha talks to deliver meaningful results is leading PTAs to take an ever more important role. Their capacity to displace WTO rules has so far been limited, in no small part because they do not cover trade between the largest WTO Members. This is about to change, however, if TTIP and TPP really get off the ground – one could add to the list the China-led Regional Comprehensive Economic Partnership (RCEP). We may call these agreements PTAs 2.0. Both the US and the EU have been signing similar deals with third parties over the past two decades. A PTA 2.0 between the two would amount to a fait accompli to everyone else regarding a number of issues. To avoid a fragmentation of global rules, Hoekman and Mavroidis propose to expand the scope of intra-WTO plurilateral agreements, and incorporate the rules conveyed in PTAs 2.0 into WTO law, as PAs if necessary.

I should begin by saying that I am generally suspicious of the argument that the WTO has somehow become too big for consensus decision-making. It is not the world’s Cubas, Venezuelas and Nicaraguas that are halting trade talks (even if they can delay results for a few hours). If we are to go beyond consensus, it seems reasonable to state whose veto it is we expect to overcome. In this case, it seems that it is mainly large developing countries – in particular India, who has repeatedly been playing spoilsport in trade talks, but perhaps China and Brazil as well – who will be given an option between accepting the incorporation of PTAs 2.0 into the WTO or being left out of trade rules 2.0.

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Flexibility or Gridlock? The Promises and Perils of Popularizing Plurilateral Agreements at the WTO

Published on October 1, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here and here . For the authors’ concluding response, see here.

Professors Bernard Hoekman and Petros Mavroidis’ EJIL article WTO ‘a la carte’ or ‘menu du jour’? Assessing the Case for More Plurilateral Agreements provokes much thought on opportunities for achieving better flexibility and neutralizing gridlocks at the WTO. The article was published soon after WTO Director General Roberto Azevedo lamented the organization’s failure to reach a work programme under the Doha Development Agenda (DDA) under its 31 July 2015 deadline, which could conceivably impede trade negotiations at the next WTO Ministerial Conference at Nairobi in December 2015. Professors Hoekman and Mavroidis provide a brilliant exposition of the factors to be considered in using the plurilateral agreement (PA) route while attempting to build multilateral agreement on more frontiers of world trade.

While I completely agree with Professors Hoekman and Mavroidis that more ‘variable geometry’ is needed now to breathe life into the trade negotiations mandate of the WTO, I do wonder whether devoting organizational resources at this stage to develop a PA ‘code of conduct’ with transparent terms on the mode of negotiating issue-specific PAs, is something that the WTO can politically afford at this stage of institutional stagnation and negotiations inertia over the DDA. A PA duly approved by the WTO membership under Art. X.9 of the WTO Agreement could indeed be a viable path to achieve harmonization and discipline over non-tariff measures, but how could this be harnessed to incentivize reaching a multilateral agreement among WTO members? If the two remaining PAs to date – on civil aircraft and government procurement – have not been universally ratified or widely opted into by WTO members to date, how can this be done under a strategically-crafted PA (as Hoekman and Mavroidis appear to suggest in proposing more usage of this route under an upfront code of conduct addressing the scope of coverage, e.g. an issue for WTO Plus, or a WTO Minus X issue on regulatory policy cooperation)?

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Feasibility and desirability of ‘clubs’ within the WTO: A critical comment on Hoekman/Mavroidis’ case for plurilateral agreements (PAs)

Published on September 30, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here and here. For the authors’ concluding response, see here.

Two phenomena characterize the contemporary world trading system, namely, the deadlock of the Doha Development Agenda (DDA) and the proliferation of preferential trade agreements (PTAs), in particular, mega-FTAs such as Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). The former illustrates the difficulty of the 161-member WTO in reaching consensus in trade negotiations, and this may have been one of the driving forces for the latter. Proliferation of PTAs has both pros and cons for the world trading system. On the one hand, PTAs facilitate trade liberalization between the parties, and they may be an incubator of new rules governing global trade and investment. On the other hand, PTAs may have trade diverting effects for non-parties. Their proliferation may result in the fragmentation of rules for global trade and investment. To sum up, the contemporary world trading system is suffering from the decay of the multilateral trading system and the disorderly proliferation of PTAs. Hoekman and Mavroidis’ recent article, titled “WTO ‘à la carte’ or ‘menu du jour’?”, published in the latest issue of the EJIL (Vol.26, No.2), tries to find a breakthrough in the world trading system by advocating the use of plurilateral agreements (PAs).

They are not the pioneers of advocating PAs. For instance, Richard Baldwin, in his article in 2012 (Richard Baldwin, “WTO 2.0: Global governance of supply chain trade”, Centre for Economic Policy Research Policy Insight No.64, December 2012), advocated a ‘WTO2.0’, which is practically a PA with limited membership, consisting of those WTO members who accept high-level rules that secure the well-functioning of global supply chains, without the special and differential treatment (S&D) to developing countries which is incorporated in the current WTO Agreements, or WTO1.0. A similar proposal was made by Michitaka Nakatomi in his article in 2012 [Michitaka Nakatomi, “Exploring Future Application of Plurilateral Trade Rules: Lessons from the ITA and the ACTA”, RIETI (Research Institute for Economy, Trade and Industry) Policy Discussion Paper 12-P-009, May 2012]. These proponents of PAs and Hoekman/Mavroidis share the common view of the contemporary world trading system. First, they regard the stalemate of the DDA as a result of the incapacity of the WTO in meeting the needs of the 21st century global trade, characterized by the globalization of value chains. Secondly, they regard the proliferation of recent RTAs, in particular mega-FTAs, as attempts by major trading countries to meet such needs. Thirdly, however, they don’t think of the proliferation of RTAs as an optimal solution to the challenges of the 21st century global trade, mainly because it might result in the fragmentation of rules for global trade and investment.

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WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements

Published on September 30, 2015        Author: 

Editor’s Note:  This is the first in a series of posts discussing the article in the current issue of EJIL Vol. 26 (2015) No 2, by Bernard Hoekman and Petros Mavroidis. See also the  posts  discussing the article by Junji Nakagawa, Diane Desierto, and Geraldo Vidigal. For the authors’ concluding response, see here.

The WTO and … ‘clubs’

The long-running Doha Round deadlock illustrates how difficult it has become to get agreement on new rules of the game among 161 WTO Members. The Agreement on Trade Facilitation that was negotiated at the 2013 WTO Ministerial meeting in Bali demonstrated that this is possible, but the proliferation of preferential trade agreements (PTAs) illustrates that many countries have been moving away from using multilateral trade agreements to liberalize international commerce and agree to new policy disciplines. Recent examples of PTAs that involve major trading nations include the agreements signed by Korea with the EU and the US and the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. It may be that one of the consequences of the Doha deadlock has been to give countries greater incentives to engage in PTAs. But there may be a reverse causality effect as well: the existence of the PTA option may reduce the incentive to agree on rules on a multilateral basis. Whatever the case may be, the proliferation of PTAs results in fragmentation of the global trading system and generates substantial information and transactions costs for traders.

There has been some action in the WTO on market access issues. This has taken the form of so-called critical mass agreements, under which concessions negotiated among a subset of countries are extended to all WTO Members a nondiscriminatory, most-favoured-nation (MFN) basis. Examples include ongoing negotiations to liberalize trade in environmental goods and the effort to extend the coverage of sectoral initiatives to liberalize trade, most notably the 1997 Information Technology Agreement (ITA). Critical mass agreements have always been an important mechanism in the GATT/WTO setting: if enough large players participate in a liberalization exercise they need not worry about free riding by other countries that do not want to participate.

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Alison Duxbury and Ian Johnstone: A Rejoinder

Published on August 21, 2015        Author: 

Delighted as I am to have received the insightful comments of Alison Duxbury and Ian Johnstone, I cannot write a very lengthy rejoinder, for the good reason that on most general matters, the three of us seem to be in broad agreement. In particular Johnstone and I are pretty much on the same page, it seems, our only quibble (if that is what it is) being about whether I go far enough in discussing the weaknesses of functionalism as principal-agent theory. Johnstone contends that I do not, and even with this I agree: functionalism is not even very good at discussing the relationship between international organizations and their member states, by and large because it refuses to acknowledge the political nature of this relationship. Functionalism aims to take the politics out of politics, and as usual, this affects its explanatory force. If the article focuses on other aspects of functionalism, it is because elsewhere I have made critical comments about such staples as the implied powers doctrine, the ultra vires doctrine, or the bias of functional necessity in the law on privileges and immunities, for instance in An Introduction to International Organizations Law (3rd ed, 2015). Beyond this, both Johnstone and I signal a move to discursive accountability (the adjective is his; I wish I had thought of it) driven largely by reputational concerns, and his rendition hereof as a ‘looser form of functionalism’ may actually give functionalism more credit than I would give it – I am not so sure that the result can still qualify as a form of functionalism.

Duxbury and I are also broadly on the same page, but she does pose some explicit questions. First (her last question) is whether functionalism has actually transformed, and here the answer must be in the negative: the process of transformation is still ongoing, and will no doubt go on for a few more decades. It is a glacial process, not an overnight transition, partly because too many have vested interests in not discarding functionalism altogether, and that includes international organizations and their staff: they benefit tremendously from the bias inherent in the law. It also includes the member states of organizations generally, who can write off governmental responsibilities and use organizations for scapegoating purposes, tut-tutting every now and then about ‘mission creep’ but secretly happy to use organizations as instruments of what Foucault would call governmentality: for most member states, having entities such as the World Bank or the International Organization for Migration function without too much oversight is much preferable to strict governmental control. It also covers pretty much all academics working on international organizations law (myself included), partly because of the way those academics are trained, and partly because functionalism generates the promise of a better world – and that is a promise that is hard to ignore.

To the extent that the above also answers Duxbury’s second question (why did functionalism become dominant?), the most difficult to answer is her first question: why trace the origins of functionalism back to two fairly obscure US-based authors from the early 20th century, rather than to later European writers such as, say, Schermers, or Bowett? And can I be certain that Reinsch and Sayre did influence their successors in quite the same measure that I think they did? Read the rest of this entry…

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Are Functionalism’s Flaws Fatal?

Published on August 20, 2015        Author: 

Jan Klabbers’ two decades of “obsession” with functionalism as a theory of international organizations law (IOL) pays off in this article. It is a highly perceptive analysis of the evolution of functionalism, arguing that it made sense when created more than a century ago, but its explanatory and prescriptive power began to erode almost immediately as the nature and impact of international organizations (IOs) changed. He argues that functionalism helps to understand the relationship between IOs and member states, but not relations within an organization or between the organization and third parties. More radically, Klabbers challenges the functionalist assumption that all activities of IOs are beneficial or benign. Not only is this factually wrong, but it also serves to obfuscate the impact of IOs by presenting them as “neutral” “apolitical” and “purely technical” creatures (p. 18). This makes it difficult to hold them accountable for they wrongs they commit, like the cholera outbreak in Haiti, let alone for perpetuation and propping up “an unfair global structure” (blog).

Like much of his work, Klabbers turns a critical eye on the “problem-solving” approach to the study of international law and organizations, without losing sight of real world challenges the law and IOs struggle with and the pragmatic solutions they are struggling to find. His analysis of functionalism is an exercise in “reconstruction” (p. 22). In the hands of a lesser scholar, this can be a risky strategy because it can tempt one to (re)construct a straw man for the purpose of debunking it. Klabbers avoids that trap by a careful reading of seminal texts and a persuasive interpretation of how functionalist theory has informed the actual practice of IOL in the past and today.

In this comment, I will: a) extend Klabbers’ critique in one area (the weaknesses of principal-agent theory); b) elaborate on it in another (IO accountability and responsibility); and c) based on the above, conclude with some thoughts about the question he asks at the end: must functionalism be discarded or can it adapt?

I agree that principal-agent (PA) theory only takes us so far in trying to understand IOL. As Klabbers points out, it does not capture inter-organizational dynamics well, nor does it have much to say about an organization’s relationships with outsiders, like non-members (consider the AU’s relations with western powers), non-state actors (such as relations between UN peacekeepers and rebel forces), or individuals. Even more damning – and this is where Klabbers critique does not go far enough – PA theory does not adequately explain or prescribe for what it purports to cover: namely the organization’s relationship with its members. Read the rest of this entry…

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