CIAO DATE: 12/2010
Volume: 21, Issue: 3
August 2010
Editorial: Copyright, Law Journals and a Romantic View of EJIL (PDF)
J.H.H. Weiler
For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either ‘forget’ to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed: ©JHH Weiler.
The Interpretation of Treaties – A Re-examination Preface
J.H.H. Weiler
Several interconnected factors call for a re-examination of treaty interpretation. I will mention only three of many. First is the much noted – and contested – notion of fragmentation of international law. Here the focus is on the emergence of different regimes, self-contained or otherwise, which manage different jurisdictions and confront different materials. One important question which follows is, do they or should they all share a similar hermeneutic? Related to this is the question of whether they, in …
Strasbourg's Interpretive Ethic: Lessons for the International Lawyer
George Letsas
The article offers an account of the judicial philosophy which underpins the European Court of Human Rights’ approach to treaty interpretation. The first part argues that Strasbourg's interpretive ethic has been dismissive of originalism and textualism and has favoured instead the moral reading of the Convention rights. The second part of the article explains why Strasbourg's interpretive ethic is fully justified, by offering an account of the nature of treaty interpretation in general. It argues that treaty interpretation is intrinsically an evaluative task in identifying the moral values which normatively constrain the projects that states pursue on the international plane. Treaty interpretation is only derivatively an exercise in discovering drafters’ intentions and in determining the meaning of treaty provisions. Which interpretive methods an adjudicative body should use depends on the nature of the treaty in question and the moral value in play.
A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court
Leena Grover
This article seeks to initiate a dialogue within international criminal law (ICL) on treaty interpretation. The state of the art is reviewed and three fundamental interpretive dilemmas are identified and analysed. In the author's view, these dilemmas need to be addressed before a method of interpretation for crimes in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court can be formulated and operationalized. The ‘normative dilemma’ highlights how the normative tensions underlying ICL might be perpetuated by the interpretive imperatives in Articles 21(3) and 22(2) of the Rome Statute. The ‘interpretive aids dilemma’ concerns the respective roles of the Elements of Crimes and custom as aids to interpreting crimes in the Rome Statute. The ‘inter-temporal dilemma’ pertains to whether these crimes are ‘frozen’ or are to be interpreted in light of relevant and applicable legal developments. Throughout, the aforementioned dilemmas are grafted onto Article 31 of the Vienna Convention on the Law of Treaties to illustrate that they are, at their core, universal problems of interpretation.
Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law
Lucas Lixinski
The article examines the jurisprudence of the Inter-American Court of Human Rights in several areas of adjudication which initially did not fall under the instrument, such as environmental rights, international humanitarian law, and investors’ rights. In all these areas, the Court has used instruments ‘foreign’ to the Inter-American system as a means to expand the content of rights in the American Convention. As a result, the umbrella of protection of this instrument, and the reach of the Court, is far greater than originally envisaged. After analysing the specific provision on interpretation of the American Convention on Human Rights as compared to the equivalent mechanisms in the Vienna Convention on the Law of Treaties, the article analyses several case studies of expansionism in the case law of the Court, asking throughout the analysis the question whether this helps the unity or the fragmentation of international law. The article argues that this exercise in expansionism, albeit imperfect, eventually contributes to the unity of international law. In this sense, this expansionism happens within controlled boundaries, and the use of external instruments is more of a validation of findings the Court could make based solely on the Inter-American instruments, rarely creating new rights.
Treaty Interpretation by the WTO Appellate Body
Isabelle Van Damme
This article analyses how the Appellate Body in practice expresses its interpretation of the WTO covered agreements, and discusses whether the Appellate Body's hermeneutics is different from that of other international courts and tribunals. It shows that it is impossible to discern the Appellate Body's hermeneutics from the practical exposition of how it interprets treaties. It also addresses the alleged particularity of the Appellate Body's hermeneutics. The key thread is the function of treaty interpretation in the development of the judicial function in the WTO. From the outset, the Appellate Body made the conscious choice to function as if it were a court. This exercise of the judicial function relates to the tasks and powers of the international judge and transcends the mere mandate and context of a particular court or tribunal as established in its constitutive document and other procedural rules. The Appellate Body's use of principles of interpretation has been instrumental in making acceptable its early choice to function as a court and to build its judicial identity. After 15 years of jurisprudence, the response of WTO members and the broader audience for the Appellate Body's decisions shows general acceptance of this initial, but perhaps not unavoidable, choice and the strategy to achieve this objective. In turn, this response has prompted less formalism in the Appellate Body's recent interpretations of the WTO treaties.
Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the 'WTO-and-Competing-Regimes' Debate?
Riccardo Pavoni
This article focuses on the principle of mutual supportiveness as a key legal tool to address tensions between competing regimes, with specific reference to the articulation of the WTO system with other subject areas protecting essential interests of the international community, such as in particular the right to health, cultural diversity, and environmental protection. It argues that the multiple references to mutual supportiveness found in recent treaties and other legal instruments should not be briskly dismissed as mere political statements devoid of any normative significance. On the contrary, while such reiterated references are important in terms of progressive consolidation of a general principle of international law, mutual supportiveness seems to be characterized by two remarkable legal dimensions. The first is its interpretative dimension, which serves the purpose of disqualifying solutions to tensions between competing regimes involving the application of conflict rules. The second is the law-making dimension of mutual supportiveness which comes into play when efforts at reconciling competing rules have unsuccessfully been exhausted. This dimension implies a duty to pursue good faith negotiations aimed at the conclusion of law-making instruments, including treaty amendments, which clarify the relationship between the competing regimes at hand. This duty is especially important for the ongoing WTO Doha negotiations which call into question non-trade regimes and values, for instance the fair and equitable use of biological resources under the 1992 Biodiversity Convention. Most importantly, either for its nature as a general principle or for its recognition as a standard internal to the WTO, mutual supportiveness under the guise of a duty to negotiate in good faith would also bind WTO Members which are not parties to the competing treaty regime which needs accommodation in WTO law.
Disappearance and New Sightings of Restrictive Interpretation(s)
Luigi Crema
This article looks to the first formulations of ‘restrictive interpretation’ to identify with precision the content and meaning of this rule. First Vattel affirmed that odious clauses should be interpreted restrictively. Then, under the Permanent Court and the first decades of the ICJ, a restrictive interpretation emerged in favour of state sovereignty. Later, with the approval of the Vienna Convention on the Law of Treaties in 1969, the interpretation favourable to state sovereignty was abandoned in favour of an alleged neutral way of interpreting treaties. However, a new restrictive interpretation (of sovereignty) was established, as an expression of the new values emerging in international law. This interpretation was obtained by means of the application of the Vienna Convention on the Law of Treaties, an explicit argument, and Latin maxims. Through a parallel analysis of jurisdictions which hear claims between private parties and states, such as the Strasbourg and the San José Courts, and the ICSID arbitrations, the article reaches the conclusion that this mode of interpretation reveals some inconsistencies. It concludes, however, that international law already has the means to address these issues.
Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?
Juliet Chevalier-Watts
Articles 1 and 2 of the European Convention on Human Rights, when read together, require a proper and adequate official investigation into deaths resulting from the actions of state agents, both from the use of lethal force, and also in situations arising from the negligence of agents that leads to a death. The article considers the extent of the obligation to carry out an effective investigation since its explicit recognition by the European Court of Human Rights in the case of McCann and Others v. United Kingdom. The article assesses the jurisprudence of the duty to investigate in order to determine whether the obligation is now placing too onerous a burden on member states in order to comply with their duties under the Convention, or whether the duty does indeed secure the right to life, as is intended. To assess the original proposition, the article considers the jurisprudence of the duty to investigate in relation to the following applications: early forays into the application of the duty; fatalities arising from non-lethal force; the influential quartet of cases arising out of the Northern Ireland troubles; recent judgments concerning cases arising out of the conflict in Chechnya; and finally through to a critical review of the effectiveness of the European Court.
Litigating against the European Union and Its Member States – Who Responds under the ILC's Draft Articles on International Responsibility of International Organizations?
Frank Hoffmeister
In its 2009 Draft Articles on international responsibility of international organizations, the International Law Commission advocated a set of rules on attribution of conduct to the organization (Draft Articles 5–8) and additional rules on the organization's responsibility in connection with the Act of a State (Draft Articles 13–18). Moreover, it included a Draft Article 63 on lex specialis. The present article examines whether such a special rule exists for the European Union and its Member States, in particular with respect to the attribution of conduct of EU Member States to the Union where they act in the execution of EU law. It therefore reviews international case law in the field of trade, human rights, investment protection, and the law of the sea as well as the special rules of the European Union itself. The author concludes that such a rule does indeed exist and makes a suggestion for a formulation thereof.
Non-compliance Mechanisms: Interaction between the Kyoto Protocol System and the European Union
Anne-Sophie Tabau, Sandrine Maljran-Dubois
The universality of climate change challenges and interdependence in the reduction of greenhouse gas (GHG) emissions called for a collective response in a multilateral framework. However, because of discrepancies on the appropriate design for an international regime the European Community (EC) took the lead on the international stage in the negotiation and the application of the Kyoto Protocol. Thus, an international regime – a mixed agreement to which both the EC and its Member States are parties – and a regional regime in the framework of the European Union coexist. In both regimes, one of the core challenges remains to ensure the effective application of the law, which requires the setting up of compliance control mechanisms. At the international level, an innovative non-compliance procedure organizes a continuous monitoring which combines traditional techniques with more intrusive procedures. The system is also remarkable as regards the legal qualification of and reaction to non-compliance situations. For its part, the EC created a specific non-contentious mechanism and can make use of a reinforced jurisdictional armory and a reinforced sanctioning power. The EC's control mechanism should be able to take over from the Kyoto Protocol non-compliance mechanism in order to reinforce the effectiveness of adopted rules. Through the study of these mechanisms’ interactions, this article aims to assess the capacity of the control system as a whole to ensure the very credibility of the Protocol and the reliability of the international and European economic tools to reduce GHG emissions at least cost. Finally, it allows the envisaging of the possible evolutions of the legal regime of the fight against climate change.
Beyond Particularism: Remarks on Some Recent Approaches to the Idea of a Universal Political and Legal Order
Sergio Dellavalle
Daniele Archibugi. The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy. Princeton: Princeton University Press, 2008. Pp. 298. $29.95. ISBN: 9780691134901. Anthony Carty. Philosophy of International Law. Edinburgh: Edinburgh University Press, 2007. Pp. 255. $80.00. ISBN: 9780748622559. Andrew Hurrell. On Global Order: Power, Values, and the Constitution of International Society. Oxford: Oxford University Press, 2007. Pp. 354. £65.00. ISBN: 9780199233106. Peter Niesen, , Benjamin Herborth (eds.). Anarchie der kommunikativen Freiheit. Frankfurt a. M.: Suhrkamp, 2007. Pp. 765€16.00. ISBN: 9783518294208. Mortimer N. S. Sellers. Republican Principles in International Law: The Fundamental Requirements of a Just World Order. New York: Palgrave Macmillan, 2006. Pp. 266. £65.00. ISBN: 9781403997449. Helen M. Stacy. Human Rights for the 21st Century: Sovereignty, Civil Society, Culture. Stanford (California)Stanford University Press, 2009. Pp. 260. $21.95. ISBN: 9780804760959. Abstract Theories of global order are traceable back to two main paradigms, particularism and universalism, the first of them asserting that true global order is a chimaera, the second affirming that a worldwide political and legal system securing peace and human rights protection is both desirable and feasible. Against this background, the article analyses some recent contributions to the question of the conditions for the establishment of a worldwide system guaranteeing peaceful and cooperative interaction. The authors of the books under review share the commitment to the universalistic view, but substantiate it by resorting to distinct theoretical presuppositions. By outlining the different frameworks, the article presents the books being discussed as inspiring inputs on the way to the renewal of universalism at the beginning of the 21st century.
Jan Klabbers
Mark Mazower. No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations. Princeton University Press, 2010, Pp. 236. $24.95. ISBN: 9780691135212. International lawyers have long held international organizations in high esteem. Paul Reinsch, arguably the first author to write comprehensively on the law of international organizations about a century ago and largely responsible for laying the foundations for the functionalist approach to international organizations, already welcomed them as working for the common global good. The sentiment culminated in Nagendra Singh’s classic statement that organizations serve the ‘salvation of mankind’. States were considered bad; organizations, by contrast, were considered inherently good.
Anne-Laurence Brugère
Thomas Grant. Admission to the United Nations, Charter Article 4 and the Rise of Universal Organization. Leiden/Boston: Martinus Nijhoff Publishers, 2009. Pp. 334. €120.00. ISBN: 9789004173637. ‘Every constitution encounters the difficult problem of distinguishing interpretation and adaptation, progressive development and amendment’.1 The question whether, and to what extent, the practice of an organization does not merely interpret but also modify its constitutive instrument lies at the very heart of Thomas Grant’s volume on Article 4 of the United Nations Charter. The volume, divided into seven chapters, is based on a thorough account of the United Nations’ practice from 1945 onwards in the matter of admission, from the ‘early years’ (Chapter 2) to the present day controversies over Kosovo and Taiwan (Chapters 5 and 6). Grant highlights perfectly the shift in 1955–1956 from a rigorous process over admission to the presumed right of states to membership; that is to say, from the wartime alliance to the universal organization (Chapter 3). This, in turn, raises the question of the legal justification for this change, a key issue addressed in Chapter 4 which this book review will concentrate on. The legal framework applicable to admission is examined in the first and last chapters. Chapter 1 intends to give an overview of the provisions of the Charter governing admission, though it deals exclusively with the procedural mechanism set out in Article 4(2).2 As for Chapter 7, it examines the legal consequences for a state of being admitted to the United Nations.
Christina Binder
Elena Conde Pérez. La denuncia de los tratados. Régimen en la Convención de Viena sobre el derecho de los tratados de 1969 y práctica estatal. Madrid: Congreso de los Diputados, 2007. Pp. 258. €9. ISBN: 9788479433031. Treaties are the major legal instruments governing inter-state relations and an indispensable tool for diplomacy: since 1945 some 54,000 treaties have been registered with the United Nations, still representing only about 70 per cent of treaties which have entered into force.1 Recently, there has been renewed doctrinal interest in the general law of treaties. It is evidenced by the spread of commentaries on the Vienna Convention on the Law of Treaties (VCLT), including O. Corten and P. Klein’s major three volume commentary of 2006 in the French language, M. Villiger’s commentary of 2009, and the forthcoming updated English translation of Corten and Klein which is announced for the autumn of 2010. Aust’s Modern Treaty Law and Practice2 may also be mentioned here. This new wave of publications is remarkable given the fact that for more than 30 years Sinclair’s The Vienna Convention on the Law of Treaties was de facto the only authoritative treatise on the Convention.
Brian D. Lepard. Customary International Law. A New Theory with Practical Applications (PDF)
Niels Peterson
Brian D. Lepard. Customary International Law. A New Theory with Practical Applications.Cambridge: Cambridge University Press, 2010. Pp. xx + 419. $55. ISBN: 9780521191364. The theory of customary international law is one of the big mysteries of international law scholarship. Every student of international law knows what customary law is. And yet, nobody knows what it actually is. Article 38(1)(b) of the Statute of the International Court of Justice defines custom as consistent state practice coupled with an opinio iuris. Although legal scholarship has filled whole libraries trying to come up with a set of rational criteria to identify these two elements, there remain many open questions. In his new book on Customary International Law, Brian Lepard intends to advance legal scholarship in the search for answers. He promises to ‘develop a new theory of customary international law that . . . helps to solve its theoretical and practical puzzles’ (at 11–12).
Ekaterina Yahyaoui Krivenkno
Ulrich Haltern. Was bedeutet Souveränität? Tübingen: Mohr Siebeck, 2007. Pp. xii + 136. €34. ISBN: 9783161492037. Toni Erskine. Embedded Cosmopolitanism. Duties to Strangers and Enemies in a World of ‘Dislocated Communities’. Oxford: Oxford University Press/British Academy, 2008. Pp. 292. £50. ISBN: 9780197264379. Jeffery L. Dunoff and Joel P. Trachtman (eds.). Ruling the World? Constitutionalism, International Law, and Global Governance. Cambridge: Cambridge University Press, 2009. Pp. xiv + 414. £19.99. ISBN: 9780521514392. Two notions constantly re-emerge in present-day research on issues arising under the general heading of constitutionalization of international law: sovereignty and cosmopolitanism. The former is regarded as being rather an impediment to the projects of international constitutionalism, the latter as a distant future goal, but both to be reinterpreted and readapted to modern realities and aspirations of researchers engaged in the theorization of international constitutionalism.
Cosmos Assessed
Eric Stein
All is well In heaven and hell And …