The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

The Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation?

Conflicts between treaty and customary norms are endemic to international law and are increasingly frequent. Yet there is nothing automatic or mechanical about interpreting and resolving such conflicts, which require a high degree of contextual sensitivity. Their identification and interpretation test the limits of the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties, particularly where treaty modifications by subsequent customary law are concerned. This article endeavours to sketch how the latter phenomenon occurs, and the interpretative and evidentiary challenges involved—many of which remain underexplored. The analysis begins with the identification and interpretation of newly emerged customary norms, before delving into the process of determining their treaty-modifying potential. This involves the side-by-side interpretation of the pre-existing treaty and the customary norm to assess whether there is a genuine incompatibility that cannot be resolved through harmonious interpretation. The final inductive step is to ascertain the parties’ consent to displace the treaty norm in favour of the customary norm, subject to certain crucial requirements. Against the backdrop of the organic and continuous interplay between treaties and customary international law, these interpretative and evidentiary steps serve to ensure that the parties’ intention remains paramount.

     

Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.     

Commanders on Trial: The Blaškić Case and the Doctrine of Command Responsibility under International Law

Netherlands International Law Review -     

Law by human intent or evolution? Some remarks on the Austrian school of economics’ role in the development of law and economics

In the late nineteenth century, economic analysis of law experienced an outright rejection by the German-speaking legal community. In the second half of the twentieth century, it became a dominant approach in American legal inquiry. We argue that this success was partly due to the insights of Austrian economics which the second wave of law and economics has incorporated. We argue that Austrian legal and economic scholars marked the two cornerstones between which the subsequent discussion oscillated: social planning versus evolution (spontaneous order).     

Is EU Administrative Law Failing in Some of Its Crucial Tasks?

Beneath the surface of steady changes in EU administrative law lurk a number of long‐term, structural problems. In this article, I argue that, because of these structural problems, EU administrative law is failing in some of its crucial tasks: (1) finding a balance between administrative convergence and administrative diversity within the EU legal system, (2) structuring administrative power and its exercise, (3) governing administrative instability. EU administrative law, however, is not necessarily trapped in the status quo. By identifying and articulating a number of long‐term problems, this article aims at providing some tools that future research could use in the discussion on the possible ways forward. More generally, it suggests that EU administrative law should be reshaped as a project of institutional design.     

Evolution and the Production of Rules—Some Preliminary Remarks

The notion of an evolutionary process was not imported from biology into social theory. The idea of spontaneous processes producing an unintended outcome was commonplace in the social sciences long before Darwin (Scottish Enlightenment).At whatever level an evolutionary perspective may be applied, it always presumes the operation of three mechanisms: (a) a mutation mechanism, i.e., a process by which constantly variation and novelty are introduced—in Popper's terms: new tentative solutions—(b) a selection mechanism, i.e a process of systematic selection among the variants—in Popper's terms: a process of error-elimination—(c) a replication mechanism, i. e., a process by which variants or tentative solutions are preserved, reproduced or propagated.Although both economists and biologists resort to equilibrium explanations—because a full and detailed specification of all causal forces cannot be given—the analogy between natural selection in biology and evolutionary processes in human societies is not that close.The selection mechanism that is operating in cultural evolution works directly on the behaviour pattern itself, i.e., on the rules that govern behaviour, without necessarily wiping out unfit carriers. Moreover, cultural evolution—which is a matter of trial and error learning and imitation—is very fast when compared with genetic evolution.Hayek works out the implications that follow from an evolutionary epistemology for the issue of socio-economic-political organization. His main subject is the social dimension of the knowledge problem or the problem of social learning. This problem has two distinct aspects.Hayek's theory of the spontaneous order of the market—which is best known for its emphasis on the capacity of markets to utilize dispersed knowledge—delivers the insight that if we want to generate in society any particular order of a certain degree of complexity, we should look for general rules of conduct which, if followed by individuals, would tend to induce that order to form spontaneously. Hayek presents an instrumental justification of a particular type of rules. Rules of just conduct exhibit certain structural characteristics—they are negative, purpose-independent, abstract, universal and permanent—but Hayek's account offers only a very general schema which has to be filled in in detail.As they are defined by Hayek, the general rules of conduct which allow for the formation of spontaneous orders, are not necessarily self-enforcing in the technical game-theoretic sense, contrarily to a widely held view.It is Hayek's emphasis on the theme of the interrelation between the system of rules and its systematic outcome at the level of the order of actions that qualifies him as a Law-and-Economics theorist.Hayek's theory of cultural evolution suggests that the abstract rules which contribute to the formation of a spontaneous order are themselves an unintended product of evolutionary processes. His theory of cultural evolution becomes disputable where it seems to argue that because of our incurable ignorance we ought necessarily to rely largely on unquestioned traditional rules instead of attempting to choose rationally or construct the system of rules that we want to follow.The question of how the different kinds of rules differ in their nature (rules of conduct vs organizational rules) must be distinguished from the question of how they originate (whether they spontaneously evolve or are deliberately designed). The two dimensions are conceptually distinct.The extension of the market analogy to the constitutional level, i.e., to the rules and institutions within which market coordination takes place, is not corroborated by the game-theoretic analysis of invisible-hand processes. This analysis does not warrant the conclusion that invisible-hand processes will always operate to generate efficient results.The game-theoretic analysis involves several simplifications however. The arguments that are based on it cannot be considered conclusive.The most developed parts of the theory of cultural evolution are the theory of nomos, as exemplified by the evolution of the common law, and the theory of the role of the judge.In the theory of the common law and the role of the judge the emphasis is on the coordination of individual activities through a process of systematic mutual adjustment of expectations. The function of the judge is to assure a maximal coincidence of—legitimate—expectations, i.e., to create a situation in which the chance to form correct expectations is as great as possible.The theory suggests that the role of the judge in making law is analogous with the role of an entrepreneur launching a new product: the entrepreneur is consciously trying to make a profit, thus unintentionally contributing to the overall allocation of resources. The judges, by upholding those rules which make it more likely that expectations will match and not conflict, are consciously trying to give greater internal coherence to the law. Each is unintentionally playing a part in the formation of a spontaneous order—in one case, the body of the common law, i.e., a system of rules of conduct conducive to the efficient operation of the order of actions which rests on it, in the other, the overall allocation of resources.The analogy is not flawless: while it seems plausible to assume that the entrepreneur, when unintentionally assisting in the overall allocation of resources, is trying to make a profit, i.e., is guided by the profit motive, it is not clear why we should assume that judges are guided by the search for greater coherence. With respect to the role of the entrepreneur, private vices may be supposed to coincide with public benefits, since only those entrepreneurs who de facto achieve positive profits in one way or another and can therefore be assumed to serve the interests of consumers better, will thrive and prosper, whereas entrepreneurs who do not succeed in doing so are eliminated sooner or later. But insofar as judges are public officials, the analogy seems to be particularly weak. Judges hardly constitute a homogeneous group and their interests and motivation may be highly varied.Insofar as judges adjudicate particular cases by means of custom and precedent, stare decisis can be said to account for the transmission or replication mechanism in the evolution of the law.It is explicitly recognized that grown law requires correction by legislation. It seems that legislation can be required both to generate novelty—i.e., as a mutation mechanism—and to eliminate errors in past developments—i.e., as a selection mechanism.Evolutionary analysis as such does not provide us with a satisfactory normative framework for comparative institutional analysis. Hayek's limits of reason argument implies that, at least to some extent, we will have to rely on the explorative potential of open-ended, competitive, evolutionary processes and on the kind of experience that accumulates in trial and error learning processes. But it should not imply that we adopt an attitude of uncritical acquiescence in evolutionary drift.One direction in which such a framework for comparative institutional analysis has been explored recently, is provided by the research programme of Constitutional Political Economy. The basic framework is derived from the contractarian analysis of multi-level individual choice.An alternative direction in which the evolutionary perspective may be provided with a normative benchmark consists of complementing it with a realist ethical theory. Popper has found in evolutionary theory a forceful argument for objectivism and realism. An elaboration of this theme would go beyond the scope of the domain of Law-and-Economics.     

The Pinochet Case: International Criminal Justice in the Gothic Style?

Book reviewed in this article:
Woodhouse, Diana (ed), The Pinochet Case: A Legal and Constitutional Analysis     

The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

Netherlands International Law Review - This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It...     

Sins of the Flesh? Obscenity Law in the Era of Virtual Reality

In the near future, pornography will be interactive, and people will be able to act out their fantasies in virtual reality. What may be unsettling is that some of these fantasies will be quite deviant, including rape, pedophilia and bestiality. The question is how our culture will respond to new technologies used to fulfill these deviant fantasies. This article examines the coming changes in the sex industry and the possible legal challenges that will arise.     

The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

Netherlands International Law Review - The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing...     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

Positive Obligations and the International Criminal Tribunals’ Law of Detention: Funding Family Visits and the ICC Presidency’s Ngudjolo Decision

This article addresses the issue of whether the international criminal tribunals are under an obligation to fund family visits for indigent detainees. It examines the concept of positive obligations and its relation to the detention situation and describes the practice of funding family visits as it has developed at the International Criminal Court. It further analyses relevant developments in the Court’s case law. It argues that the Court is indeed obliged to fund family visits. In this regard, the mere recognition of a detainee’s right to family visits in the tribunals’ legal frameworks andin international soft-law penological standards can be said to inadequately reflect the particularities of international detention.

     

Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan

Drawing on ethnographic fieldwork in Sudan, this article illuminates the consequences of human rights educational workshops as a form of humanitarian assistance in war‐ravaged areas. These projects are built on flawed assumptions about Sudanese politics and about the likelihood that human rights education empowers the war‐ravaged poor. The beneficial impacts of human rights discourse stem from its side effects, which fulfill urgent and symbolic needs, and not from the core content of human rights. The case of an authoritarian regime exposes an alternative site of rights promotion, outside the established or struggling democracies where most literature on rights resides. Bridging the literature on rights in Western, democratic contexts and on human rights in Africa, this article argues that law is not enough—and is potentially dangerous—in the insecure and impoverished areas where the international aid community has been encouraging it to flourish.     

Some Remarks on the Genesis of Central Yogācāra-Vijñānavāda Concepts

The present paper is a kind of selective summary of my book The Genesis of Yogācāra-Vijñānavāda (2014). [1.–2.] It deals with questions of origin and early development of three basic concepts of this school, viz., the ‘idealist’ thesis that the whole world is mind only (cittamātra) or manifestation only (vijñaptimātra), the assumption of a subliminal layer of the mind (ālayavijñāna), and the analysis of phenomena in terms of the “Three Natures” (svabhāvatraya). [3.] It has been asserted (H. Buescher) that these three basic concepts are logically inseparable and therefore must have been introduced conjointly. [4.] Still, from Vasubandhu onward treatises have been written in which only one of the three concepts is advocated or demonstrated to be indispensable, without any reference to the other two being made. Likewise, in most of the earlier Yogācāra treatises, the three concepts occur in different sections or contexts, or are even entirely absent, as vijñaptimātra in the Yogācārabhūmi (except for the Sa?dhinirmocanasūtra quotation) and ālayavijñāna in the Mahāyānasūtrāla?kāra and Madhyāntavibhāga. [5.] It is therefore probable that the three concepts were introduced separately and for different reasons. [5.1.] As regards the concept of the “Three Natures”, I very hypothetically suggest that it was stimulated by the Tattvārthapa?ala of the Bodhisatvabhūmi. [5.2.1.] In the case of ālayavijñāna, I still think that my hypothesis that the concept (term + idea) originated from a problem emerging in connection with the “attainment of cessation” (nirodhasamāpatti) holds good and has not been conclusively refuted, but I admit that Prof. Yamabe?s hypothesis is a serious alternative. [5.2.2.] An important point is that in the Yogācārabhūmi we come across two fundamentally different concepts of ālayavijñāna, the starting point for the change being, probably, the fifth chapter of the Sa?dhinirmocanasūtra. [5.3.] As for ‘idealism’, we may have to distinguish two strands, which, however, tend to merge. [5.3.1.] The earlier one uses the concept cittamātra and emerges as early as in the Pratyutpanna-buddha-sa?mukhāvasthita-samādhi-sūtra in connection with an interpretation of visions of the Buddha Amitāyus. [5.3.2.] The later strand introduces the concept vijñaptimātra and seems to have originated in the eighth chapter of the Sa?dhinirmocanasūtra in connection with a reflection on the images perceived in insight meditation. [5.3.3.] In texts like the Mahāyānasūtrāla?kāra, concepts from other Mahāyānasūtra strands (like abhūtaparikalpa) become prominent in this connection, and it is only in the Mahāyānasa?graha that the use of vijñaptimātra is finally established.     

A Manifesto on Enforcing Law in the Age of ‘Artificial Intelligence’

Building upon A Manifesto In Defense of Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, we, the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, have reconvened to draft a second consensus manifesto that calls for the effective and legitimate enforcement of laws concerning AI systems. In doing so, we recognise the important and complementary role of standards and compliance practices. Whereas the first manifesto focused on the relationship between democratic law-making and technology, this second manifesto shifts focus from the design of law in the age of AI to the enforcement of law. Concretely, we offer 10 recommendations for addressing the key enforcement challenges shared across transatlantic stakeholders. We call on those who support these recommendations to sign this manifesto. The Fifth Edition of The Athens Roundtable on AI and the Rule of Law will take place on November 30th and December 1st, 2023. It will delve into pressing governance challenges posed by foundation models and generative AI across jurisdictions.     

From IPOA Sharks to Sharks MoU Under the Convention on Migratory Species: Progress or Clutter in International Environmental Law?

Abstract

The conservation and management of sharks is regulated under different international instruments of varying degrees of specificity and with different legal purposes. Two international instruments targeted at the conservation and management of sharks are the International Plan of Action for Sharks and the Sharks Memorandum of Understanding, which was adopted under the Convention on Migratory Species. This article examines and compares these two non-binding instruments, querying not only what was gained from the adoption of an additional non-binding instrument in the Sharks MoU just ten years after the IPOA Sharks but also how the accumulation of soft law instruments may operate within the framework of international environmental law. We show that such instruments do serve different purposes and can serve the ultimate goal of improving the conservation status of sharks, as well as thickening international environmental law to the benefit of species conservation.