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Guest Post: The Complexity of International Trials Is Necessary

by Stuart Ford

[Stuart Ford is an Assistant Professor at The John Marshall Law School.]

International criminal trials are extremely complex. The average trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) takes 176 trial days and involves more than 120 witnesses and 2,000 exhibits. See here at table 2. In comparison, the average criminal trial in the United States takes less than one day, and even the average murder trial takes only three or four days. Id. at 53-55. As a result, there is a widespread belief that international criminal trials are too complex, and international tribunals have come under enormous pressure to reduce that complexity. See here at Part I.

The ICTY, for example, made a number of changes to the Rules of Evidence and Procedure that were intended to reduce trial complexity. See, for example, here. Professors Langer and Doherty found that those changes failed to reduce the complexity of the ICTY’s trials, but why? The answer is important because if we understood what drove the complexity of international trials, perhaps we could find ways to reduce their complexity (and the associated cost) without undermining the purposes of international criminal justice.

My latest project attempts to answer that question by taking the complexity data I collected for my earlier work on the efficiency of international criminal courts and using it to build a model of trial complexity. Trial complexity is the response variable in the model, while the explanatory variables were based on a number of hypotheses about what might cause trial complexity. The hypotheses are summarized below:

Hypotheses
H1 Complexity increases as the number of accused tried together increases
H2 Complexity increases as the seniority of the accused in the political and military hierarchy increases
H3 Complexity increases as the total number of counts in the indictment increases
H4 Complexity increases as the number of crime sites in the indictment increases
H5 Complexity increases if the accused are charged with genocide
H6 Complexity increases is the accused are charged as members of a joint criminal enterprise (JCE)
H7 Complexity increases if the accused are charged under a theory of superior responsibility
H8 Complexity decreases if the accused are charged as a direct perpetrators

The association between the hypotheses and trial complexity was then tested using a multiple regression model. The results of the regression are presented below:

Model Results
Variable Effect Size Significant
Total Accused   0.077 Yes
Seniority   0.065 Yes
Total Counts   0.0061 Yes
Crime Sites   0.0006 No
Genocide   0.066 No
JCE   0.048 No
Superior Responsibility -0.088 No
Direct Perpetrator -0.20 Yes

The results suggest that international tribunals will have a very hard time reducing the complexity of their trials. First of all, the number of crime sites is not significant in the model. Thus simply permitting the judge to impose limits on the number of crime sites in the indictment will probably not be successful. The number of counts in the indictment is statistically significant, but the magnitude of the effect is very small, indicating that any reduction in the overall complexity from imposing limits on the number of counts would also be small. Neither the mode of liability used to prosecute the accused or the legal qualification of the charge had a statistically significant effect on trial complexity either.

In contrast, two factors are both statistically significant and have a large impact on the resulting trial complexity. The most important factor is the accused’s seniority within their respective military or political hierarchies. The complexity that resulted from increasing the accused’s seniority by one level was approximately equivalent to adding an additional ten counts to the indictment. Direct perpetration also had a large impact on overall complexity. Accused who were alleged to be direct perpetrators of violence (i.e., they carried it out themselves), had significantly shorter trials.

The figure below shows the relative contributions of the various factors to the complexity of the median ICTY case. The seniority of the accused and whether the accused was a direct perpetrator account for the majority of the resulting trial complexity.

sford

So, what does this all mean? The results suggest that the key factor driving the complexity of international criminal trials is the geographic and organizational distance of the accused from the crimes they are alleged to be responsible for. Indirect perpetration, where the accused is alleged to be legally responsible for crimes that were physically carried out by others, is a hallmark of international criminal trials. Such individuals tend to be distant, both organizationally and geographically, from the violence that results. (In the model, this distance is captured by the seniority and direct perpetration variables.) As a result, proving that they are criminally responsible for the acts of the direct perpetrators is very difficult and accounts for the bulk of the trial’s complexity.

This has implications for the future of international trials. For at least the last ten years, international tribunals have sought to reduce trial complexity by tinkering with the rules of procedure and evidence. This is unlikely to ever be successful because changes in the procedure cannot change the accused’s seniority or whether that person is a direct perpetrator.

There are some ways that trial complexity could be reduced, but they all come with fairly serious drawbacks. For example, courts could significantly reduce complexity by trying only low-level direct perpetrators. For policy reasons, however, international courts have been encouraged to focus on the most senior leaders. See, for example, here at 71-74. The result is very complex and expensive trials.

Making international criminal law a strict liability regime would also probably reduce complexity significantly by reducing the difficulty of linking accused to crimes from which they are organizationally and geographically distant. The cost, however, would be too high. Strict liability crimes are only appropriate when the violation is not associated with strong moral condemnation and the penalties are small. Serious violations of international criminal law, however, involve both stiff penalties and strong moral condemnation. Importing strict liability into international criminal law would be extremely undesirable, even if it did dramatically reduce trial complexity.

Another possibility would be to embrace symbolic charging at international tribunals. My calculations (see here at 38-42) indicate that using symbolic charging rather than representative charging would have reduced trial complexity at the ICTY by, at best, about a quarter. At the same time, it would have made it significantly harder for the court to achieve its goals by limiting its ability to inform the historical record, promote post-conflict reconciliation, and help victims find closure. These are important goals of international criminal justice and they are probably not worth compromising for a relatively modest reduction in trial complexity.

Finally, an increased use of plea bargaining might be another way to reduce overall trial complexity by simply avoiding the need to have some trials. Unfortunately, it is unlikely to have a significant impact because the cases involving the most senior leaders are the cases least likely to be resolved through a plea bargain and simultaneously the largest source of trial complexity. Prosecutors, for instance, are probably reluctant to enter into a plea deal with the individuals they believe masterminded the crimes. At the same time, senior accused are more likely to see their prosecutions in political terms and thus less likely to accept a plea deal. Indeed, the majority of plea bargains at the ICTY were accepted by low to mid-level accused.

The last ten years have seen most international tribunals focus their efforts on the most senior leaders, almost none of whom are direct perpetrators of violence.   The unsurprising result is trials of enormous complexity. Moreover, this complexity is largely out of the hands of individual judges and prosecutors. It arises from the policy decision to focus on senior leaders, and the model suggests it cannot be meaningfully changed by tinkering with the rules of procedure and evidence. The cost and complexity of international criminal trials is a necessary consequence of that policy decision.

Guest Post: Landmark Sovereign Debt Restructuring Award

by Laurie Achtouk-Spivak and Paul Barker

[Laurie Achtouk-Spivak is a member of the Bar in Paris and New York. She acts as counsel and advocate in investment treaty arbitrations before ICSID as well as other arbitration institutions. She teaches investor-State dispute settlement at the University of Poitiers. She also regularly publishes on investment treaty arbitration and is a member of the Peer Review Board of the ICSID Review. Paul Barker is a member of the Bar in New York. He has acted as counsel to States in ICSID arbitrations and international proceedings arising out of sovereign debt restructurings. His publications and research interests include the standard of review and legitimate regulatory interests in investment treaty arbitration, and transnational human rights litigation. The authors were members of Cleary Gottlieb’s counsel team for the Hellenic Republic in the Poštová arbitration. The views expressed here are their own and do not necessarily reflect those of their firm, the Hellenic Republic or any of their firm’s other clients.]

On 9 April 2015, an International Centre for Settlement of Investment Disputes (“ICSID”) arbitral tribunal dismissed a case arising out of Greece’s sovereign debt exchange for lack of jurisdiction. The landmark decision is the first time that an ICSID tribunal has declined jurisdiction over interests in sovereign bonds.

The award was made in Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic, a bilateral investment treaty (“BIT”) arbitration initiated in 2013 by a Slovak bank and its former Cypriot shareholder under the Slovak Republic-Hellenic Republic BIT (“Slovakia-Greece BIT”) and the Cyprus-Hellenic Republic BIT. The claimants had sought compensation for illegal expropriation, failure to accord fair and equitable treatment, and violation of umbrella clauses in respect of the bank’s interests in Greek government bonds (“GGBs”) that were exchanged in 2012.

Beyond the headline, the decision is an important reminder that not every kind of asset qualifies as a protected investment under a potentially applicable investment treaty or the ICSID Convention, and of the basic yet fundamental rule of treaty interpretation that a BIT’s terms must be interpreted in good faith within their context and in light of the treaty’s object and purpose. More generally, the conclusion by a majority of the Tribunal that the bank’s interests in GGBs did not meet the objective requirements of contribution and risk for the purposes of Article 25 of the ICSID Convention may have broader implications for treaty-based claims asserted by other holders of interests in restructured sovereign debt.

No Investment Under The BIT

In deciding whether it had jurisdiction ratione materiae (subject-matter jurisdiction) over the dispute, the Tribunal had to determine as a matter of treaty interpretation whether the interests in the GGBs held by the Slovak claimant, Poštová banka, qualified as a protected investment under the definition of investment in Article 1(1) of the Slovakia-Greece BIT, specifically its chapeau and the categories of assets listed thereunder. As we discuss below, the Tribunal found that the bank’s interests in GGBs did not fall within the definition and therefore dismissed the claim.

The chapeau of Article 1 of the Slovakia-Greece BIT provides that “[i]nvestment means every kind of asset and in particular, though not exclusively includes: (…).” Article 1(1)(b) refers to “shares in and stock and debentures of a company and any other form of participation in a company.” Article 1(1)(c) refers to “loans, claims to money or to any performance under contract having a financial value.” (para 278)

Although the Tribunal agreed with Claimants that Article 1 of the BIT contains a broad asset-based definition rather than a closed list or exhaustive description (para 286), the Tribunal noted that the careful drafting of categories of protected investments in the subsections demonstrated that there were limits to the definition. (para 294) In this regard, the Tribunal considered Greece’s treaty practice, observing that some Greek BITs refer to the term “loans,” others to “long term loans,” others to loans “connected to an investment”, whilst others exclude the term “loan” altogether. (para 292) Accordingly, the Tribunal underlined the importance of the principle of effective treaty interpretation as follows:

  1. The list of examples provided by the Slovakia-Greece BIT must, thus, be considered in the context of the treaty and be given some meaning together. Otherwise, if the interpretation stops by simply indicating that any asset is an investment, the examples will be unnecessary, redundant or useless. […]

The Tribunal was further persuaded by the fact that Article 1(1)(b) of the BIT refers to “shares in and stock and debentures of a company and any other form of participation in a company” but not to sovereign debt or bonds issued by the State parties. The Tribunal found that this language in the Slovakia-Greece BIT differed significantly from the Argentina-Italy BIT at issue in Abaclat and Ambiente Ufficio, in which ICSID tribunals upheld jurisdiction over sovereign bonds. (para 304) For example, whereas Article 1(c) of the Argentina-Italy BIT includes “obligations, private or public titles or any other right to performances or services having economic value, including capitalized revenues,” Article 1(1) of the Slovakia-Greece BIT does not refer to a general concept such as “obligations,” or to “public titles”. (paras 306-308)

In the absence of similar language to the Argentina-Italy BIT, the Tribunal could not reach the same conclusions as in Abaclat and Ambiente (or for that matter the more recent Alemanni case), holding that:

an interpretation of the text and context of Article 1(1) leads the Tribunal to consider that the State parties to the treaty wanted an ample definition of what could constitute an investment, but within certain categories that are also broad, but not unlimited. Otherwise, the examples could be expanded to include any asset whatsoever, and would become useless or meaningless. (para 314)

As part of the interpretative exercise, the Tribunal paid particular attention to the special features and characteristics of sovereign debt that distinguish it from private debt, (318-323) including that creditors’ security and legal recourse against a sovereign debtor is much more limited, and there is a high degree of political influence and risk, because:

[a] sovereign State engages in much more complex decisions, both in negotiating and structuring the debt and in payment thereof, and repayment is subject not only to the normal credit risk of any credit operation, but also to political decisions that are extremely sensitive for the inhabitants of the given State, such as a tax increase or a reduction in public expenditure or investment to repay the sovereign debt. (para 320)

The Tribunal thus concluded:

In sum, sovereign debt is an instrument of government monetary and economic policy and its impact at the local and international levels makes it an important tool for the handling of social and economic policies of a State. It cannot, thus, be equated to private indebtedness or corporate debt (para 324)

The Tribunal also noted the practical realities of sovereign debt, including that its issuance is subject to specific and strict regulations and that secondary market trading and holding of sovereign debt is also heavily regulated. (paras 325-326, 329) The Tribunal noted that sovereign debt financial instruments are “easily tradable” on the secondary market, independent of the issuing State, and that creditors therefore change many times during the life of the financial instrument. (para 327)

The Tribunal agreed with Greece that sovereign bonds are “different from forms of participation in corporations, and therefore their exclusion from the definition of investment in a given treaty indicates that the contracting parties did not intend to cover these types of assets.” (para 333)

Having performed its analysis of the treaty language and practicalities of sovereign debt issuance and trading, the Tribunal reasoned that:

  1. Neither Article 1(1) of the Slovakia-Greece BIT nor other provisions of the treaty refer, in any way, to sovereign debt, public titles, public securities, public obligations or the like. The Slovakia-Greece BIT does not contain language that may suggest that the State parties considered, in the wide category of investments of the list of Article 1(1) of the BIT, public debt or public obligations, much less sovereign debt, as an investment under the treaty.

Nor did the sovereign bonds at issue fall within Article 1(1)(c) of the BIT (“loans, claims to money or to any performance under contract having a financial value”), because there was inter alia no claim to money, no contractual privity or contractual relationship between Poštová and Greece that could arise out of the bond issuance or trading process. (paras 338-349)

By adopting a rigorous approach to treaty interpretation that focuses on the terms in their context and in light of the BIT’s object and purpose in order to give an effective meaning, the award therefore has wider significance in demonstrating that not every kind of asset qualifies as a protected investment, including where the treaty contains a broadly drafted asset-based definition, which is common in BITs.

No Investment Under The ICSID Convention

For an ICSID arbitral tribunal to have jurisdiction ratione materiae, it must find that the dispute concerns an investment protected under both the underlying BIT and the ICSID Convention. Because the Poštová Tribunal found no jurisdiction under the Slovakia-Greece BIT, it was not necessary to consider the position under the ICSID Convention in order to dispose of the case. Nevertheless, a majority of the Tribunal made important observations on the treatment of sovereign debt under the ICSID Convention.

As noted by the Tribunal, a number of ICSID tribunals have held that there are “objective” characteristics of an “investment” under Article 25 of the ICSID Convention irrespective of any “subjective” definition of an investment agreed in the BIT, namely (i) a contribution of money or assets, (ii) duration and (iii) risk. (paras 351-359)

Having concluded that the “subjective” test pursuant to Article 1 of the BIT was not met – and therefore the Tribunal lacked jurisdiction over the dispute – a majority of the Tribunal nevertheless stated that the claimants would also have failed to satisfy the “objective” requirements for an investment to be protected under the ICSID Convention. (paras 360, 371) Specifically, “the element of contribution to an economic venture and the existence of the specific operational risk that characterizes an investment under the objective approach” were not present. (para 371) Accordingly, the Tribunal could not have asserted jurisdiction even if the BIT had been drafted broadly enough to cover sovereign debt.

Whereas the majority considered an investment “in an economic sense, is linked with a process of creation of value”, the arbitrators found that Poštová’s purchase of interests in GGBs made no contribution to an economic venture. (paras 361, 371) In this regard, the majority noted:

  1. The Claimants have not argued that the money Poštová banka paid for the GGB interests, even if considered as ultimately benefitting Greece, was used in economically productive activities. Rather, it appears that the funds were used for Greece’s budgetary needs, and particularly for repaying its debts…

Citing to Michael Waibel’s scholarship, the Tribunal noted the importance of the distinction between sovereign bonds that are used for general funding purposes and those used for specific public works or services. (para 364)

The Tribunal observed that the ICSID tribunals in Fedax v. Venezuela, CSOB v. Slovakia, Joy Mining v. Egypt and Alps Finance v. Slovak Republic have adopted the same approach in distinguishing between protected investments connected with a particular economic operation, on the one hand, and instruments or contracts that are not linked with an economic venture and are therefore do not satisfy the objective test, on the other. (para 365)

Regarding the risk element, the majority held that investment risk requires the presence of operational risk, explaining:

  1. Under the objective approach, commercial and sovereign risks are distinct from operational risk. The distinction here would be between a risk inherent in the investment operation in its surrounding – meaning that the profits are not ascertained but depend on the success or failure of the economic venture concerned – and all the other commercial and sovereign risks.

The majority’s view was that acquisition of interests in sovereign bonds would not amount to taking any operational risk. (para 371)

In sum, had the objective requirements of contribution and risk been applied, the Tribunal would not therefore have had jurisdiction over the dispute under the ICSID Convention, regardless of the language in the Slovakia-Greece BIT. This conclusion will undoubtedly give pause to other holders of interests in sovereign debt before initiating arbitration proceedings under other investment treaties.

Guest Post: The Status of the Territory Unchanged: Russia’s Treaties with Abkhazia and South Ossetia, Georgia

by Natia Kalandarishvili-Mueller

[Natia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law. The views expressed in the post are that of the author only.]

Russia still occupies twenty percent of Georgian territory. On 24 November 2014, the Russian Federation and Abkhazia, one of Georgia’s breakaway region, signed a Treaty on Alliance and Strategic Partnership. The document is an avenue for Abkhazia’s incorporation into Russia’s military, economic, social and legal space. Particularly, it aims to create a common security and defence system and armed forces of Russia and Abkhazia in the form of joint defence and border protection forces and unifies standards of warfare management and law enforcement. Moscow also envisages the breakaway region’s support with military equipment. The provisions provide for the harmonization of the breakaway region’s legislation not only with that of Russia, but also with the standards of the Eurasian Economic Union. Russia also guarantees helping Abkhazia not only with its international recognition, but also facilitating Abkhazia’s membership in international organizations. On 18 March 2015, Russia and the other one of Georgia’s breakaway regions, South Ossetia, also signed a Treaty on Alliance and Integration (and here) containing basically the same provisions.

The Government of Georgia regards both these treaties as Russian annexation of Georgian territories (here and here). Georgia’s view is not without grounds. As a whole, the aforementioned documents also undermine the right to return and the right to self-determination of ethnic Georgians and their descendants who have been forced to flee their homes during the 1990s and 2008 armed conflicts. At present, the issue of the ethnic cleansing of Georgians is dealt with by the ICC, but only in the context of the 2008 armed conflict. The ICC Prosecutor’s Office Report on Preliminary Examination Activities (December 2014) observed that

[…] there is a reasonable basis to believe that South Ossetian forces carried out a widespread and systematic attack against the ethnic Georgian civilian population in South Ossetia and adjacent areas in the context of the armed conflict in the period from August 2008 through October 2008 that amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d). There is a reasonable basis to believe that these forces also committed war crimes of pillaging under 8(2)(b)(xvi) and/or article 8(2)(e)(v) and destroying civilian property belonging to ethnic Georgians under article 8(2)(a)(iv) and/or article 8(2)(e)(xii) in the same period. (para. 140)

Hence, from the perspective of international law, the signed treaties raise complex issues such as the legality of the use of force, state formation, the management of natural resources, and the validity of these very treaties in light of the VCLT of 1969, occupation law, territorial annexation and the legality of self-determination of these territories. This post chooses to focus on the last three aspects, namely the interplay of the principles of annexation and self-determination in light of occupation law. Two questions may, therefore, be posed in light of the signed treaties:

  1. According to International Humanitarian Law (IHL), what is the relationship between occupation law and annexation of territory?
  2. What is the relevant legal framework for self-determination in international law and how may it be connected with occupation law?

 

Occupation Law and the Annexation of Territory

In light of the first question, I argue that even when an instance of annexation of territory takes place, the situation of occupation continues from the perspective of IHL, and the responsibility of the occupying power vis-à-vis the civilian population persists. Hence, no matter what type of treaty is forged or which agreements are achieved by Russia and the breakaway regions of Georgia, Abkhazia and South Ossetia will still remain occupied in light of Article 42 HR 1907. This stance echoes the reading of Article 47 of the GC IV, which states that:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

Likewise, the commentary to Article 47 regards the relationship between situations of occupation and those of annexation in the following way:

[…] an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.

Dinstein, too, considers that an occupant cannot take the title, i.e. the possession of the territory it occupies. The displaced sovereign, therefore, remains to be holding the title de jure and the annexation of the occupied territory by the occupant is prohibited (Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, 2009, p. 49). Thus “any unilateral annexation of an occupied territory – in whole or in part – by the Occupying Power would be legally stillborn” (ibid. p. 50). Therefore, IHL does not fall mute, as it bases its application on the facts on the ground. The fact that Russia continues to exert effective control over Abkhazia and South Ossetia in light of Article 42 HR 1907 cannot be swept under the carpet. Even if Russia considers signing these treaties to be valid because it has herself recognised Abkhazia and South Ossetia as sovereign states, in light of the separability of ius ad bellum and ius in bello, for IHL the situation remains unchanged:

This complete separation between ius ad bellum and ius in bello implies that IHL applies whenever there is de facto armed conflict, however that conflict can be qualified under ius ad bellum, and that no ius ad bellum arguments may be used in interpreting IHL. (M. Sassòli, A.A Bouvier, et al., How Does Law Protect In War? ICRC, Vol. I, 2006, p. 103)

 

Occupation Law and Self-Determination

In light of the second question, I argue that a situation of occupation may end with self-determination. However, resorting to self-determination may only be justified once the effective control of the occupant over the territory is completely relinquished and the process of self-determination is free from any third-party interference, particularly by the former occupant. Furthermore, self-determination, if exercised contrary to the international law principles of state sovereignty and territorial inviolability, undermines these very principles. In 1970, the Secretary General of the UN stated that:

… as far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocable. As an international organisation, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State. (U. Thant, “Secretary General’s Press Conferences” (1970) 7:2 UN Monthly Chronicle 34 at 36)

There are two forms of self-determination: external and internal (A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 5). Internal self-determination means that an entity establishes its self-government within the internationally recognized borders of a state (C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, London School of Economics and Political Science, PhD thesis, 2009, p. 90). In practice, internal self-determination can take various forms, from simple cultural autonomy to the canton system in Switzerland (C. Dominicé, The Secession of the Canton of Jura in Switzerland, in Secession: International Law Perspectives, in M. G. Kohen (ed.), Cambridge University, 2006, pp. 453–469).

External self-determination, on the other hand, means that an entity determines its status under international law, establishes its position among the international community and regulates its relation with other states free from the intervention of any state (supra, C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, p. 90). Direct recourse to external self-determination (i.e., secession) could undermine not only the principles of sovereignty and territorial integrity, as mentioned above, but render the whole concept of self-determination unjust. As such, this right has been linked to the colonial period and was aimed to free the people from the oppressing regimes. In its decision, the Supreme Court of Canada makes this point explicit:

International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people […]. (Reference RE Secession of Quebec Supreme Court of Canada (1998) 2. S.C.R. 217 §112)

Further, the Canadian Supreme Court views external self-determination as a step of last resort in particular situations:

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. (ibid., § 126)

It has to be mentioned that the circumstances which would pronounce the conditions for external self-determination in international law lack clarity. This is also evidenced by the stance the ICJ took in the advisory opinion on Accordance of International Law of the Unilateral Declaration of Independence in Respect of Kosovo, when it only dealt with the issue of whether or not Kosovo’s unilateral declaration of independence was in accordance with international law (§ 49-56 and § 82-83). Based on arguments of those in favor of external self-determination, Borgen summarized one possible way such a rule could be formulated:

“Any attempt to claim legal secession “that is, where secession trumps territorial integrity” must at least show that:

  1. 1. the secessionists are a “people” (in the ethnographic sense);

  2. 2. the state from which they are seceding seriously violates their human rights; and

  3. 3. there are no other effective remedies under either domestic law or international law” (C.J. Borgen, Kosovo’s Declaration for Independence: Self-Determination, Secession and Recognition, ASIL Insights, Issue 2, Volume 12, February 29, 2008 available here)

In the context of de-colonisation, the concept of self-determination meant that colonies were allowed to “secede” and form a state on their own. But when it comes to “communities that are not colonies and within existing states, self-determination means ‘internal self-determination’, the pursuit of minority rights within the existing state” (C.J. Borgen, States and International Law: The Problems of Self-determination, Secession, and Recognition in B. Cali (ed.), International Law for International Relations, Oxford, 2009, p. 207).

Therefore, before directly leaping to claims of secession, internal self-determination has to be exercised. In this context, the demographic situation of the territory must not be changed and all those who lived there and who were forcibly transferred away from it have to have a say in the future of its status. At least this is what permeates the logic of international law. This would respectively apply to the Georgians and their descendants who were evicted from Abkhazia and South Ossetia and who were the victims of ethnic cleansing, both during the 1990s armed conflicts and the 2008 war.

Examining self-determination and occupation law in tandem points to the fact that it has to be viewed in light of the element of consent, i.e. who gives consent of the presence of the hostile state on the territory. The lack of consent to be present on one’s territory during military occupation means the previous power/sovereign is absent from the territory and does not exercise effective control over it as any state ought to over its own territory. So that consent is regarded valid, it must not be coerced and be extended by the recognised government of the recognised state (E. Benvenisti, The International Law of Occupation, Oxford University Press, 2012, p. 67).

When an occupant claims not to have effective control over the territory, but remains on the territory either by an alleged invitation of the de facto regime or by a drawn-up treaty, not only the legality of the regime has to be questioned, but also the validity of the treaty has to be examined in light of the VCLT.

In my view, these are the points that bring to the forefront the tension between occupation law and the principle of self-determination. Any recourse to the right of self-determination of a territory should be done only once a situation of occupation has completely ended and even then it should only be exercised without third-party intervention in addition to restoring the original demographic situation. During military occupation, when elections or the determination of the political future of the occupied territory are underway without the genuine consent of the ousted government, the situation on the ground continues to be one of occupation.

[This post has been slightly revised from the previous version that was posted.]

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

Book Symposium: Interpretation — An Exact Art

by Philip Allott

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.]

Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence.

The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of reality contained in the text, a reality which is already an interpretation by the mind of some aspect of human experience, and the interpretative re-re-presentation then itself becomes part of that reality. The circular problem of the presentation of reality in language and symbols that modify reality has traditionally been seen as a problem of epistemology – How do we know anything? What is that we know when we think that we know something?

When a text is in a moral context (what does this text say that I or we should do?), it may have a personal effect beyond the social effect. Interpretation may generate a sense of obligation.   When a text is in a legal context, it may have more dramatic effects, personal and social. It may give rise to legal relations – rights, duties, powers, freedoms, etc.   And legal relations switch on specific and powerful social mechanisms in the making and the application and the enforcement of law.

It is a familiar fact that translation into another language can never produce a perfect re-presentation of a text in that other language. But such an ideal may dominate the mind of the translator, involving an underlying respect for the intention of the author of the text. In the case of interpretation, the originating premise is that the interpretation will be something different from the text interpreted.

A speculative or imagined intention of the author of the text may be a relevant element in interpretation, but the interpretation may properly take into account an unlimited number of other considerations. The interpretative context is, in principle, unlimited. It is for this reason that an attempt to lay down general legal rules of interpretation, as in the Vienna Convention on the Law of Treaties, is futile, not least because those rules must themselves be interpreted.

Thus all forms of interpretation involve a succession of acts of creation, supplementing the creative act that produced the original text. The original text becomes the nucleus of an ever-growing living-body of interpretations, each interpretation digesting the work of its predecessors. The text comes to be what it has been made to become through interpretation.

In all forms of interpretation, there may be a sense of proper limits to freedom of interpretation, an implied and unspoken deontology of interpretation. A religious text, centuries later, may have only slender connections with its original form. A Greek tragedy is its bare text plus centuries of thought about it. A work of art is overlaid with veneers, layer after layer, of thought about the work. The only controlling obligations in such cases seem to be a duty to preserve a continuing coherence of interpretation, a sense of respect for the author, a sense of changing social and cultural contexts to which interpretation should respond.

In the case of legal interpretation, the controlling deontology is an integral part of the justification of law itself as a social phenomenon. Law is a violation of human freedom inherited from the social past, taking effect in the social present, determining the social future. Law needs a lot of justifying. Lawyers are aware of this, especially judges and leading practising lawyers, and legal academic writers. Arbitrary interpretation would be a violation of the social responsibility of the lawyer, an abuse of social power. Lawyers know that they must justify their legal interpretations in the same ways that law in general and public authority in general are justified – through respect for a whole array of contextual social and moral standards and understandings, and an ultimate duty to find and to serve the common interest.

Interpretation of International Law is in a very different situation. There are no established contextual social and moral norms and understandings of the kind that dominate advanced national societies.   The overriding international ethic is the use of crude power and diplomatic power to serve nationally determined interests, with only a weak sense of a common interest.   The systems of law-making and law-application and law-enforcement are rudimentary and haphazard.   An international legal text is a happy-hunting-ground for the extreme ingenuity and duplicity that enlightened self-interest, and the subtle minds of lawyers, can generate – and an inexhaustible source of wealth for some.   Practical examples of this abound in the torrent of legal texts created and interpreted and applied in the vast expansion of the scope of International Law since 1945.

The future of international legal interpretation will be better if the future of International Society is better – and if International Lawyers acquire a more sophisticated understanding of the nature and the problems and the responsibilities of all forms of interpretation, and especially of legal interpretation. Interpretation in International Law is an art and a game and a field of battle. It is an ultimate art of the possible, and the possible includes a better kind of law for a better kind of international society.

Book Symposium: Textualism in Treaty Interpretation–A Genealogy

by Fuad Zarbiyev

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:

[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.

The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:

[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.

Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.

Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.

Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.

Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.

A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.

Guest Post: How Many International Law Books are Published in a Year?

by John Louth

[John Louth is Editor-in-Chief of Academic Law at Oxford University Press.]

I make it 401, but more of that below.

A few years ago when we carried out some research into law scholars’ habits we found many were telling us that there was so much being published that they didn’t even try to keep up anymore. I decided to try and see how difficult it would be to get a snapshot of just the books that published in one 12 month period – April 2014 to March 2015. The dates reflect two important cycles in my life: it matches OUP’s financial year and it marks the time between annual meetings of the American Society of International Law, the largest annual gathering of international lawyers (in the English speaking world at least).

The starting point for collecting titles was Jacob Katz Cogan’s invaluable International Law Reporter blog but due to the slightly different criteria for inclusion that I was applying I also went through publishers’ websites systematically. The result was 401 books published in English, French, and German.  No judgements about the quality of the scholarship were made – if it published in print, it was included. The full list in spreadsheet form and an explanation of the criteria for inclusion are available here. There is naturally a lot of room for debate about what I deemed to be “international” and what I deemed to be “law”. For each title I recorded the author/editor, language of publication, the publisher, and the subject area.

Statistical Overview

The top four publishers by number of titles were

  1. 1. CUP (72)

  2. 2. OUP (69)

  3. 3. Brill-Nijhoff (56)

  4. 4. Routledge (44).

Further behind we then have

  1. 5. Nomos (25)

  2. 6. Springer (24, or 27 if you include the 3 Asser Press titles they distribute)

  3. 7. Edward Elgar (20)

  4. 8. Pedone (19)

  5. 9. Hart (18)

  6. 10. Bruylant (11) and then a number of presses with between one and four titles in the list.

The linguistic split is 340 English, 36 French, 19 German, 5 French and English, and 1 German and English. The ratio of authored to edited books was 246 to 155.

Every title was assigned either one or two broad subject areas that it covered. The total figure for numbers of titles by subject therefore is greater than 401. Economic law broadly speaking (encompassing those titles on international economic law generally, plus those specifically on trade or investment law) accounts for the largest number (67), then human rights (53) and then war/peace/use of force issues (51).

The two institutions that had the most attention were the UN Security Council and the International Criminal Court which were the subject of 7 books each. Breaking the coverage down geographically there were more books about China (8) than anywhere else, followed by the Polar regions (6).

“Hot” Topics?

There were

  • 13 titles addressing issues of transitional or post-conflict justice
  • 7 each on terrorism and cyber issues
  • 6 each on corruption and economic/social/cultural rights, and
  • 5 on climate change.

Book publishing obviously lags behind current events which might explain why there are still quite a few books on piracy (4) in the list but not yet anything specifically on Syria or ISIS. In terms of genres the big one is clearly the “Handbook” with 13 in the list spread between Routledge, Elgar, and OUP, but the second is the evergreen Festschrift with 12 having published in this period. Special mention should be made of a liber amicorum for Serge Sur published by Pedone which is not on the list as it appears to have only been available as a subscription item and doesn’t seem to be available any more. That is a great shame as it concludes with a chapter about the glories of hard-boiled eggs with mayonnaise, for many years an inexplicable lacuna in international legal scholarship.

Why Do Such a Survey?

I did this to step back from my role as an OUP editor and see what is going on outside of my list but also to assess what kind of a burden is being placed on those who are trying to stay abreast of scholarship in their field. For scholars and librarians I hope that it is simply useful to see a reasonably comprehensive list and make sure you haven’t missed anything. Beyond that though it is probably helfpul to reflect on the quantity of output, the languages, and the subject areas/topics that are being published on. What areas are over-saturated and which are in need of greater coverage? Is it a concern that such a high proportion of the single-authored books are based on doctorates or is that a healthy sign of new thinkers entering the field?

If there is interest we could try to make this an annual survey, hopefully including publications from more than the three languages covered (helpers would be needed though as my language skills are limited to English, French, and German).

To get a fuller picture we need to look at journals and the many hybrid forms of scholarly output (such as working papers or reports produced for international organizations) but that will take some more time due to the vastly greater quantity of material to be sifted through.  For now I hope that this inaugural survey is food for thought.

Book Symposium: Accounting for Difference in Treaty Interpretation over Time

by Julian Arato

[Julian Arato is an Associate-in-Law at Columbia Law School.]

Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the Law of Treaties (VCLT). There is something funny about defending the rules in such a collection – like arguing for reform in a volume on revolution.

My chapter, ‘Accounting for Difference in Treaty Interpretation over Time’, embraces the Vienna rules in principle. I reject neither rules nor formality, and I happily hew toward the VCLT’s project of bringing order to the practice of interpretation. In my view, there is real value in the regulatory ideal that a “correct” interpretation of any treaty exists. The Vienna rules reflect a crucial language for approaching that ideal. The rules don’t simply provide access to the correct interpretation – they help constitute it. And, crucially, they do so according to a scheme accepted by states, the plenary subjects of international law.

Still, in an important sense I agree with the volume’s critical spirit. In my view the real problem lies not with the Vienna rules themselves, but with a reverence for them that sometimes borders on the fetishistic. It’s not the rules, in other words, but the way they tend to be received. The misstep lies in the notion that the Vienna rules comprise a fully self-contained approach to treaty interpretation – universally applicable to all treaties, and always in the same way. This article of faith is neither borne out in practice nor in theory, and nowhere is this more evident than in the interpretation of treaties over time.

All students of public international law are at some point taught that as a matter of doctrine all treaties are subject to the same unified rules of interpretation. Yet at the same time, everyone knows that some treaties are special. Time and again we hear that some kinds of treaties are different. Courts, tribunals, and scholars often intone that certain treaties are entitled to special treatment when it comes to interpretation, especially as regards changes of circumstances and intentions attending the passage of time.

Often the argument is that human rights treaties are somehow special – capable of progressive evolution over time, with or without the continued consent of the parties. By the same token, it is sometimes suggested that subsequent party practice, usually an authentic criterion for the interpretation, reinterpretation, or even the modification of treaties, is somehow of less value in the context of interpreting treaties that confer rights on natural persons. The argument is that in such cases the mastery of the parties over time is somehow reduced. We hear similar statements about environmental treaties, territorial treaties, and of course the constituent instruments of international organizations. The problem is that the explanations offered for differentiating among types of treaties are rarely satisfactory.

The argument that a particular treaty provision is entitled to special treatment tends to be explained in one of two ways, both of which prove ultimately unsatisfying. One approach simply invokes the general subject matter of certain treaties in singling them out for special treatment. In light of their special subject matter, the argument goes, treaties on subjects like human rights or the environment should be understood as insulated from the changing will of the parties, and sometimes capable of autonomous evolution. But such statements cannot withstand serious criticism. In the words of the ILC’s Fragmentation Report (at [21]): “characterizations (‘trade law’, ‘environmental law’) have no normative value per se … The characteristics have less to do with the ‘nature’ of the treaty than the interests from which it is described.”

A second school of thought tries to work within the Vienna rules – focusing especially on one criterion of interpretation, object and purpose, in accounting for ascribing differential weight to the other codified rules. On this view, the touchstone must always be the intention of the states parties, as reflected in the goals that the treaty seeks to achieve. Adherents of the object and purpose approach have the advantage of formality. Its proponents can argue that the answers lie within the rules after all, in the invocation of object and purpose at VCLT Article 31(1). And yet something important still seems to be missing. Even where a treaty’s goals are sufficiently determinate, the interpreter must still ask how far the parties were willing to go to achieve their goals. Though a treaty may enshrine certain values, it remains critical to ask to what extent the states parties intended to entrench those values – to what extent, in other words, they agreed to tie themselves to the mast.

My suggestion is that international lawyers’ tendency to focus doggedly on the canons of interpretation codified in the VCLT draws attention away from a crucial consideration in the interpretive puzzle: the nature of the treaty obligations under interpretation. What gets left out is any inquiry into how far the states parties intended to commit themselves in acceding to a treaty obligation.

Put more schematically, the critical issue elided by the Vienna rules is whether a treaty provision entails a merely reciprocal exchange of rights and duties, or rather incorporates a more absolute commitment by the parties to take on an obligation insulated from their changing intentions, and over which their subsequent mastery might prove relatively limited. Some treaty norms represent mere exchanges of rights and duties, wholly dependent on mutual performance. If one party breaches its obligations, the other is well within its rights to do the same. Other norms represent a shared commitment to abstain from, or engage in, a certain behavior – whatever the other parties do. It is well understood that differences in the level of party commitment are relevant to determining the consequences of treaty breach, or to resolving conflicts with subsequent treaties. And indeed, as Pauwelyn has noted, the VCLT itself recognizes the importance of drawing distinctions between different types of treaty norms for these non-interpretive purposes. I argue that this distinction is just as central to the resolution of problems of interpretation over time.

Starting from the perspective that the Vienna rules are essential, I suggest that the problem of differential interpretation over time reveals a deficiency in how we think about VCLT Articles 31–32. Specifically we ought to avoid treating it as a total interpretive mechanism. The problem lies not in our interpretive rules as such, but in the assumption that any set of rules can do all the work. Without arguing for anything like revising or abandoning the VCLT, I suggest that the process of interpretation may sometimes require taking into account considerations left unmentioned by Articles 31–32. Distinguishing between types of obligations based on the level of the parties’ commitment is a case in point. Doing so helps account for quite a bit of interpretive practice that would otherwise appear anomalous under the Vienna rules; hopefully it can provide a more principled justification for differential interpretation going forward.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]