Everything you need to know about the majority's dismissive attitude toward the Prosecution's evidence of genocide is contained in this paragraph: 179. In relation to the alleged insufficient resources allocated by the GoS to ensure adequate conditions of life in IDP Camps in Darfur, the Majority considers that the Prosecution's allegation is vague in light of the fact that, in addition...
As you have likely heard by now, the DOJ has released nine more memos from the Bush Administration's Office of Legal Counsel concerning various national security and international law issues. My colleague Brian Tamanaha has read through them and has a post over at Balkinization on why they show that John Yoo's argument that he and his colleagues acted in...
Having now read the decision on the arrest warrant, I am more convinced than ever that the majority completely misunderstands Article 58's "reasonable grounds" requirement. The rationale for the majority's argument that there are no reasonable grounds to believe Bashir is responsible for genocide comes in paras. 158 and 159, concerning the Prosecution's proof of the Sudanese government's genocidal intent...
As we come to the end of our discussion of Richard Gardiner's book and the subject of Treaty Interpretation more generally, I wanted to thank our guest bloggers and, of course, Richard, for what has proven a sophisticated (and hopefully useful) discussion. I have thoroughly enjoyed the examination Isabelle, Malgosia, Jan and Richard brought to bear on issues about the...
Treaties constitute one of the largest effective components of modern international law. Lawyers routinely have to give meaning to their terms. Mostly this is straightforward, but often enough there are interesting difficulties in deciding what the terms mean and how they apply in novel or unexpected situations. I have found all the posts and comments extremely interesting, and I am grateful...
In what proved to be the worst kept secret in the world, the Pre-Trial Chamber (PTC) has decided to issue a warrant for Bashir's arrest on the war crimes and crimes against humanity charges, but not on the genocide charges. More substantive analysis will have to await an explanation of the PTC's reasoning. For now, a couple of quick thoughts. To...
It seems that our discussion these past few days confirms that 40 years after the Vienna Conference the meta-questions relating to treaty interpretation remain unaltered. But perhaps it also appears that the ILC ultimately made the right decision to codify the relatively few basic principles on which agreement could be found. The Commission always made it clear that...
I much enjoyed reading the views of Duncan Hollis on the art element in treaty interpretation and on auto-interpretation. I agree that who it is who is making an interpretation may play a key part in the outcome. That two tribunals arrived at different interpretations of similar “umbrella” provisions in bilateral investment treaties shows this all too vividly (SGS v...
I am actually not sure whether it makes much sense, as Isabelle fleetingly suggests, to think of articles 31-32 in terms of either rules or principles. Following e.g. Rosenne, I tend to think that they lack any 'norm-creative character' (to use the phrase from the ICJ's 1969 North Sea Continental Shelf cases), and are best seen as methodological devices: as instructions...
As Jan suggested at the end of his post, it seems that the broader question underlying our debate is how principles of treaty interpretation are used to empower international courts and tribunals and what the limits are of that function. On interpretation as a rule-governed activity, it seems that we all approach Articles 31 to 33 VCLT as principles rather than...
First off, I should say how much I admire Richard Gardiner's book; it has already earned a prominent spot on my bookshelf and I expect it will become a regular reference work for me in any future interpretative exercises. At the same time, I have lots of questions and comments about the book and the growing density of the VCLT...
First, my thanks for Malgosia, Isabelle and Jan for all their comments. The work of the ECtHR has an interesting aspect in the present context. One of the first to take up the Vienna rules systematically, the Court (as Malgosia shows) has apparently not found them to constrict its development of a distinctive line of case law appropriate to the Convention...
