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Excessive Multilingualism in EU Trade Agreements

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The legal protection of multilingualism is an important principle and an indispensable guarantee for the functioning of the institutions of the European Union (EU) as well as for their relationships with EU citizens. This is not only evidenced by Article 22 of the Charter of Fundamental Rights, which obligates the Union to respect linguistic diversity. Beyond that, legally protecting multilingualism is, as the European Parliament stated, “not a matter of communication only, but also a question of democratic legitimacy towards citizens and respect for the cultural diversity of the Member States. It affects the way in which EU legislation is drafted and interpreted”.

Multilingualism is also well established in the EU Treaties themselves, concluded between the Member States in 24 equally authentic languages (Article 55 TEU), which can be interpreted authoritatively by the Court of Justice of the European Union (CJEU) whenever necessary.

The practice of the European Union is quite similar with regard to treaties concluded with non-Member States. In particular, several free trade agreements (FTAs) concluded or negotiated with such states have been drawn up in no less than 23 or 24 equally authentic languages. Read the rest of this entry…

 
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EJIL Debate. Thirlway’s Rejoinder

Published on January 19, 2018        Author: 
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I am grateful to Professor d’Aspremont for his interesting and courteous response to my somewhat critical piece. I think we agree . . . that there is plenty on which we agree to differ! However, may I mention a few points?

A minor linguistic matter: the terms ‘the logic of sources’ and ‘the logic of interpretation’ seem to me unfortunate. I trust that Prof. d’Aspremont will agree that the rules of logic, or if you like of logical argument, are surely identical whatever the subject under discussion. The postulates and the facts are unique to the context and the problem examined, but to arrive at an intellectually correct result, the reasoning processes must follow the universal rules of logic; the expressions quoted seem to undermine this universality.

Prof. d’Aspremont does not find my use of the concept of opposability helpful. Maybe my point will be clearer if expressed in this way: in the relevant part of the ICJ Whaling judgment, the Court was, in his view engaged in a process of interpretation, but applied to it the intellectual approach appropriate to a problem of sources.  But was it a process of interpretation? Before the Court could enquire into what exactly were the obligations of Japan under the Whaling Convention as interpreted by the challenged resolution – a matter of interpretation – it had to decide whether the resolution was relevant at all – a question of sources (consent to a treaty-instrument). If the resolution was relevant, its effect on the reading of the Convention would be a matter of interpretation; but that stage was never reached.

Prof. d’Aspremont denies that he is ‘thinking from the Bench’; but surely whenever a scholar criticises a judicial decision, he is in effect saying ‘This is what the Court ought to have said: this is what my dissenting opinion would have said had I been among the judges?’ And to my mind this is so whether the critic is saying ‘The Court was wrong on its own premises’, or contending that ‘The matter should have been approached in a different way, viz. .  . .’

Read the rest of this entry…

 

EJIL Debate. The Whaling case and the Duty to Cooperate: Responding to Professors Thirlway and d’Aspremont

Published on January 17, 2018        Author: 
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I am puzzled by the very terms of the debate between Professors Thirlway and d’Aspremont for several reasons. First, there is a considerable ambiguity in both Japan’s argument and the Court’s position as to the legal effects yielded by the IWC resolutions. Hence, it is inevitable to have a variation of interpretations. Second, I believe that the determination of the implications of the judgment should not be made dependent on an “objectivised” subjective intention of the Parties or the Court — a task which is no work for legal scholars anyway.

Yet, my main source of puzzlement lies elsewhere. While the focus of Thirlway and d’Aspremont’s debate is on the Court’s position on Article 31 of the VCLT with regards to Japan’s non-assertion to the resolution, I submit that the most ground-breaking part of the judgment is that the Court brought back the legal effect of the resolutions from the backdoor, that is via the concept of ‘the duty to cooperate’. In this post, I would like to draw the attention of the readers to the unique characteristic of the duty to cooperate referred to in the Whaling case, and the possible necessity for a new conceptual framework. In particular, I argue, neither the logic of sources nor the logic of interpretation can sufficiently explain what the Court did with the duty of to cooperate. Read the rest of this entry…

 

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: 
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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…

 

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: 
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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…