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International Legal Theory and Teaching

AJIL Symposium: Comment on “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?”

by Richard Gardiner

[Richard Gardiner is a Visiting Professor at University College London, Faculty of Laws]

The article which this symposium addresses is important, timely, and elegant.

It is an important study because it examines one of the most common misunderstandings about the VCLT provisions on the role of preparatory work in treaty interpretation. It lays to rest the mistaken idea that an interpreter may only consider preparatory work if interpretation of a treaty provision by applying the general rule reveals ambiguity or obscurity, or leads to a result which is manifestly absurd or unreasonable. As the study shows, these considerations are only prerequisites for use of preparatory work to determine meaning, not for its much wider role of confirming meaning.

This is particularly timely because the ILC may itself have given the misleading impression in its recent (and otherwise very useful) work on subsequent agreements and practice, suggesting that any recourse to preparatory work is limited by preconditions:

Article 32 includes a threshold between the primary means of interpretation according to article 31, all of which are to be taken into account in the process of interpretation, and “supplementary means of interpretation” to which recourse may be had when the interpretation according to article 31 leaves the meaning of the treaty or its terms ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. (ILC 2013 Report, Chapter IV, A/68/10, p 14, Commentary on Draft Conclusion 1, para (3), footnote omitted.)

This seems to lose the careful distinction in the 1969 ILC/VCLT scheme between general use of preparatory work to confirm and its conditioned use to determine meaning.

The most elegant feature of the study is its use of the preparatory work of the VCLT to confirm the proper meaning of the Vienna provisions themselves. (more…)

AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 2

by Ulf Linderfalk

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden. The first part of his comments can be found here.]

In what sense does the VCLT give a description of the way to understand a treaty?

The way Julian describes prevailing legal doctrine, the presumption against preparatory work is effectuated “by a set of threshold restrictions that relegate drafting history to ‘a carefully bounded and contingent role’, for use only … ‘when the text [of a treaty] cannot, in itself, guide the interpreter’” (pp. 782-783). Julian finds this position to be inconsistent with legal practice. As he says, (p. 783)

the ‘strange thing’ about Articles 31 and 32 ‘is that the one serious limit these rules set, is constantly ignored: I cannot think of a serious lawyer who would not at least have a look at some of the preparatory work to bolster her conclusion or, if necessary, reconsider her conclusion, regardless of whether the interpretation without the preparatory works would lead to ambiguous or absurd results.’

Such statements indicate a failure to distinguish between the scholarly investigation and description of an activity such as the interpretation of treaties in a context of discovery and in a context of justification, respectively.

Investigating the usage of Articles 31-32 of the VCLT in a context of discovery, scholars’ primary interest is with the mental processing of the kinds of material listed in those two provisions. Scholars are interested in knowing the way some given agent or agents, or class of agents (such as international lawyers or judiciaries, for instance) actually use particular means of interpretation in reaching an understanding of a treaty. Investigations ask questions such as the following:

(1)   When lawyers think they have an insufficient understanding of a treaty, do they generally consult preparatory work?

(2)   In any situation described in Question (1), do lawyers generally consult the relevant conventional language or languages, that is, the lexicon, grammar, and pragmatic rules of the language used for the authenticated version or versions of the treaty?

(3)   In any situation described in Question (1), to the extent that lawyers consult preparatory work and conventional language, do they generally consult conventional language before they consult preparatory work, or rather the opposite?

Investigating the usage of Articles 31-32 of the VCLT in a context of justification, scholars’ primary interest is with international law as a reason for action. Scholars are interested in knowing under what particular condition or conditions an understanding of a treaty will be considered legally correct. Investigations ask questions such as the following:

(4)   In a situation where a treaty is in need of clarification, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language?

(5)   In any situation described in Question (4), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from its preparatory work?

(6)   In any situation where the usage of conventional language and preparatory work imply the adoption of different meanings, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language rather than in accordance with whatever can be inferred from preparatory work?

(7)   In any situation described in Question (6), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from preparatory work rather than in accordance with conventional language?

Obviously, like most rules in the VCLT, Articles 31-32 give a description of the proper justification of legal propositions. They do not seek to teach us anything about the mental processing of interpreters of interpretation data such as preparatory work and conventional language. Rather, they seek to teach us something about the conditions under which the understanding of a treaty in accordance with each respective set of data will be considered legally correct. Any failure to see this will quite naturally cause questions like that posed by Julian on page 787:

[The Confirmation Route] allows the use of travaux to check and reassess the provisional hypothesis yielded under Article 31. Unsurprisingly, this inquiry usually validates the interpreter’s hypothesis. But not always. Sometimes, a fair and thorough analysis of the travaux will convince an interpreter that the drafters meant to convey something different from her original understanding. What happens then?

Obviously, if Articles 31-32 gives a description of the interpretation of treaties, not in a context of discovery, but in a context of justification, then nothing in the VCLT prevents an agent from consulting the preparatory work of a treaty before he/she/it engages in serious studies of conventional language, the context of the treaty, or its object and purpose. The order of consultation is immaterial. In a context of justification, the relevant questions are whether or not the meaning that the agent possibly discovers from studying preparatory work can be justifiably inferred; whether Article 31 provides sufficient reason to confer a different meaning on the treaty; and if so, whether there are sufficient reasons to refer to that meaning as manifestly absurd or unreasonable, in the sense of Article 32.

What is the appropriate method for a scholarly analysis of Articles 31-32 of the VCLT?

Julian’s conclusion about the role and significance of preparatory work for the interpretation of treaties builds on an analysis of the meaning of Article 31, paragraph 4, and Article 32 of the VCLT. The methodology used for this analysis implies very little usage of other interpretation data than the preparatory work of the VCLT, including Summary Records and Documents of the Vienna Conference; Reports of the 1966 meetings of the Sixth Committee of the UN General Assembly; the Final Draft Articles With Commentaries adopted by the International Law Commission in 1966; comments given by governments on the ILC Final Draft Articles; the Draft Articles With Commentaries preliminarily adopted by the International Law Commission in 1964; Summary Records of the ILC meetings held in 1964 and 1966; and the Third and Sixth Reports of the ILC Special Rapporteur on the Law of Treaties. Obviously, this choice of methodology assumes the conclusion. Julian relies primarily on preparatory work to show that preparatory work can be used as a “primary means of interpretation” – on an equal footing with conventional language, context, and the object and purpose of a treaty. To Julian’s defense, it could perhaps be contended that whatever other methodology he would have chosen, he would have appeared as internally inconsistent. This contention, however, builds on a misunderstanding of the role of the international legal scholar.

Treaty interpretation is an activity that engages many different kinds of agents, including, for example, international legal scholars, judiciaries, state organs and representatives, and state counsels. Not all agents are subject to the same societal constraints, of course. Depending on the capacity of a treaty interpreter, consequently, different lines of action are typically expected. So, for example, is a person acting as state counsel expected to choose the line of action that serves the particular interest of his or her employer or client as effectively as possible. One-sidedly advocating a particular meaning of a treaty, without caring too much about other possible meanings or counter-arguments, is standard procedure. If instead the person had acted in the capacity of an international legal scholar, like Julian Mortenson does, this same line of action would be considered improper. A scholar is expected to consider openly the possibility of conferring different meanings on a treaty. He or she is expected to conduct an open-minded assessment of those different possibilities, making allowance for arguments and counter-arguments alike.

Consequently, as I see it, the only appropriate method for Julian to conduct his analysis of the meaning of Articles 31-32 of the VCLT is to assess his preferred interpretation with an open mind to other possible alternatives. Thus, he should have inquired more carefully into (i) the wording of the VCLT, (ii) the organizational structure of Articles 31-32 of the VCLT, and (iii) the general significance and possible ways of reading ILC materials. In so doing, his entire argument would have come out rather differently. For those with a particular interest in issues of treaty interpretation, I have developed this argument in a working paper posted on the SSRN.

AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 1

by Ulf Linderfalk

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden.]

Julian’s article focuses on a single proposition (p. 780)

“[W]hen an interpreter thinks a text [of a treaty] is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux [préparatoires] might suggest to the contrary.”

Specifically, Julian argues (p. 781), that this proposition – while today shared by an overwhelming majority of international judiciaries and legal scholars – “cannot be reconciled with the agreement actually reached in 1969” and embodied by Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

In critically assessing Mortenson’s article, I find that it builds on three assumptions:

  • In the final analysis, the legally correct meaning of a treaty is determined by the intention of its parties. Thus, when interpreting a treaty, the ultimate purpose is to find out how the original parties to the treaty actually intended it to be understood.
  • Articles 31 and 32 of the VCLT guide interpreters to discovering the common intention of treaty parties. Thus, ordinary meaning, context, preparatory work, and other means of interpretation help interpreters understand the legally correct meaning of a treaty.
  • A detailed analysis of the preparatory work of the Vienna Convention is an appropriate method for a scholarly analysis of the legally correct meaning of Articles 31 and 32 of the VCLT.

As I will explain in my two posts for this Symposium, I think all three of Julian’s assumptions are either fundamentally flawed or seriously debatable. Readers with a particular interest in issues of treaty
interpretation might want to consult the slightly more elaborate working paper that I have recently posted on the SSRN.

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AJIL Symposium: The Travaux of Travaux

by Julian Davis Mortenson

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law]

It is often asserted that the Vienna Convention on the Law of Treaties relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

As The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History? demonstrates, however, this conventional wisdom cannot be reconciled with the agreement that was actually concluded in 1969. Careful analysis of the multi-decade process that led to the VCLT shows that, far from adopting a doctrinally restrictive view of drafting history, the Vienna Conference sought to secure the place of travaux as a regular, central, and indeed crucial component of treaty interpretation. In reaching this conclusion, the article draws on a range of published and unpublished sources, including minutes from meetings of the Institut de droit international, the International Law Commission, the UN General Assembly in both its plenary and Sixth Committee sessions, and the Vienna Conference itself; internal memoranda and other documents circulated at each of those institutions; and proposed drafts and amendments that were submitted throughout the process.

It is true (and likely a source of modern confusion) that Vienna Conference delegates rejected a U.S. proposal to formulate the rules of treaty interpretation as a totality-of-the-circumstances balancing test. But that had nothing to do with hostility to travaux as such, much less with any desire to impose strict threshold requirements on their use. Rather, the delegates were rejecting Myres McDougal’s view of treaty interpretation as an ab initio reconstruction of whatever wise interpreters might view as good public policy. They objected to the purpose for which New Haven School interpreters wanted to use travaux—not to drafting history as a source of meaning per se.

To the contrary, the drafters repeatedly reiterated that any serious effort to understand a treaty should rely on the careful and textually grounded resort to travaux, without embarrassment or apology. They themselves leaned heavily on travaux when debating any legal question that turned on the meaning of an existing treaty. And each time a handful of genuinely anti-travaux delegates attempted to restrict the use of drafting history to cases where the text was ambiguous or absurd, those efforts were roundly rejected.

The understanding that emerged was of interpretation as a recursive and inelegant process that would spiral in toward the meaning of a treaty, rather than as a rigidly linear deductive algorithm tied to a particular hierarchical sequence. In any seriously contested case, interpreters were expected automatically to assess the historical evidence about the course of discussions, negotiations, and compromises that resulted in the treaty text—in short, the travaux. The modern view that Article 32 relegated travaux to an inferior position is simply wrong. The VCLT drafters were not hostile to travaux. They meant for treaty interpreters to assess drafting history for what it is worth in each case: no more, but certainly no less.

TED Talks, Placebo Politics, and the Work of International Lawyers

by Chris Borgen

I recently wrote a post that described the virtues of international lawyers thinking about the future and having an international law analog to “design fiction.” The main point being we as international lawyers are often so focused on historical examples, issues, and analogies that we need to spend more time considering the technological changes that are upon us and changing the world in which we live. A bit of tech futurism + international legal practice.

One of the best-known critiques of the profession considered the lack of imagination of the international legal profession. In 2001, Martti Koskeniemi wrote in The Gentle Civilizer of Nations that international law had been depoliticized and marginalized “as graphically illustrated by its absence from the arenas of today’s globalization struggles” or it had become “a technical instrument for the advancement of the agendas of powerful interests or actors in the world scene.” (page 3) He further wrote that international lawyers “in the past 40 years have failed to use the imaginative opportunities that were available to them, and open horizons beyond academic and political instrumentalization, in favor of worn-out internationalist causes that form the mainstay of today’s commitment to international law.” (page 5)

Now, having made a plea for a little more tech futurism in international law, I note that Professor Benjamin Bratton has just done a great job of taking the form of technological futurism most prevalent in TED conferences and smacking it upside the head a few times. Moreover, he did this in a sharp TEDx presentation (and an essay in The Guardian). I highly recommend watching the full TED talk. There’s a lot there that also applies to international legal profession.

Bratton describes the problem of “placebo politics”—focusing on technology and innovation as the solution to major world problems, but not taking into account the difficult issues of history, economics, and politics that bedevil actual workable solutions. Problems become oversimplified. He wrote in The Guardian:

Perhaps the pinnacle of placebo politics and innovation was featured at TEDx San Diego in 2011. You’re familiar I assume with Kony2012, the social media campaign to stop war crimes in central Africa? So what happened here? Evangelical surfer bro goes to help kids in Africa. He makes a campy video explaining genocide to the cast of Glee. The world finds his public epiphany to be shallow to the point of self-delusion. The complex geopolitics of central Africa are left undisturbed. Kony’s still there. The end.

You see, when inspiration becomes manipulation, inspiration becomes obfuscation. If you are not cynical you should be sceptical. You should be as sceptical of placebo politics as you are placebo medicine.

For more on Kony 2012, see our discussion of it, here.

Bratton continued:

If we really want transformation, we have to slog through the hard stuff (history, economics, philosophy, art, ambiguities, contradictions). Bracketing it off to the side to focus just on technology, or just on innovation, actually prevents transformation.

Instead of dumbing-down the future, we need to raise the level of general understanding to the level of complexity of the systems in which we are embedded and which are embedded in us. This is not about “personal stories of inspiration”, it’s about the difficult and uncertain work of demystification and reconceptualisation: the hard stuff that really changes how we think. More Copernicus, less Tony Robbins.

[Emphases added.]

International lawyers can be (but aren’t always) good at the facts on the ground, the messy realities of history, politics, economics. If my previous post was about how lawyers need to keep a weather eye on how new tech is changing the present and shaping the future, then Bratton reminds us how the technologists need to appreciate the hard realities of the present and to remember the lessons of past. In other words, each of us has a lot to learn from the other.

Two Thoughts on Manuel Ventura’s Critique of Specific Direction

by Kevin Jon Heller

Manuel Ventura, the director of the Peace and Justice Initiative, has published two excellent posts at Spreading the Jam (here and here) that criticize the specific-direction requirement — and my defence of it. I cannot possibly address all of the points that Manuel makes, but I do want to respond to his understanding of the role that customary international law plays at the ICTY and his defence of the Special Tribunal for Lebanon’s (STL) analysis of the general definition of terrorism under customary international law.

Custom at the ICTY

As Manuel notes, the Special Court for Sierra Leone (SCSL) rejected Perisic‘s specific-direction requirement because it concluded that the requirement lacked an adequate foundation in customary international law. I criticized the SCSL’s position in a recent post, pointing out that the ICTY did not need to find a customary foundation for the specific-direction requirement:

Ad hoc tribunals are limited to applying customary international law because of the nullem crimen sine lege principle: relying on non-customary principles to convict a defendant would convict a defendant of acts that were not criminal at the time they were committed. The specific-direction requirement, however does not expand criminal liability beyond custom; it narrows it. There is thus no reason why the requirement has to have a customary foundation.

Manuel takes issue with my argument in an interesting way — by insisting that the ICTY can only apply legal principles that have a customary foundation, because customary international law is the only source of law that the Tribunal is empowered to apply:

But, says Kevin Jon Heller here and here, this is all irrelevant, as specific direction need not have a customary law basis since it only serves to narrow criminal responsibility rather than expand it. In his view only in the latter is nullum crimen engaged – the reason why the ICTY was mandated to apply customary international law. However, this view misses an important and very basic point. As he acknowledges, the mandate of the ICTY is to apply custom, and while it is true that nullum crimen is not engaged when criminal liability is contracted rather than expanded, it is also true that in not applying custom the ICTY is not applying the law it was specifically mandated and empowered by the UN Security Council to apply. If specific direction is not custom, then it is still applying something, but it cannot be called customary international law. In other words, it went beyond applying its governing law, and into a realm that is was not expressly empowered to go. In short, if specific direction is not customary, then it acted ultra vires and that is as problematic as a nullum crimen violation. It is not simply a bad policy decision that only engages ‘criminal law theory’.

There are two basic problems with Manuel’s argument. First, it is based on a misunderstanding of the ICTY’s mandate. Manuel claims that the Tribunal is empowered to apply one source of law and only one source of law: custom. But the Secretary-General’s report on SC Res. 808 does not say that. Here is the relevant paragraph about custom (para. 34)…

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

When the “Things to Come” are Already Here, Where Should International Law Go?

by Chris Borgen

Novelists such as H.G. Wells and George Orwell used fantastic fiction to describe their world as it was and to imagine, to use Wells’ title, “The Shape of Things to Come.” This past summer I wrote a post on what current science fiction can bring to international law. I mentioned various books that, though fantastic, illuminated topics related to international law, international relations, or national security.

Well, according to my tricorder, I mean, the newsfeed on my smartphone, this past week reality just got a little more science fictional with the revelations of US intelligence agents roaming around in World of Warcraft and Second Life, on the hunt for any terrorist who might be using these virtual worlds to communicate, plot, and even train.

For all the surprise this has elicited, this isn’t the first time we’ve seen virtual worlds (weirdly) interact with the very real world of international relations. There was that time that the Green Lantern Corps had to patrol a virtual refugee camp that had been built by human rights activists in Second Life’s Sudan in order to protect it from vandals.  Or that proprietary financial system owned by a Chinese company that would support financial transfers and investments across the economies of different virtual worlds.  Or that time that NATO commissioned an interactive model of Afghanistan for planning and training.  And then there’s the Swedish Embassy in Second Life

So, Snowden reveals that U.S. intelligence agents are posing as, let’s say, warrior elves and they’re running around on quests in World of Warcraft looking for al Qaeda organizers.  I’m just not all that surprised.  It is a bit amusing, though, that there ended up being so many intelligence officers online that they had to set up a “deconfliction group” to keep track of who was really whom, so that some Jack Ryan posing as a warrior elf wouldn’t report a wizard as being an al Qaeda operative when that wizard is actually a US agent posing as an al Qaeda operative who’s avatar is a wizard. This truly is “The Looking Glass War.”

These are the types of scenarios one sees in “political science fiction.” Sci-fi bloggers have remarked that the Snowden revelations are not that different from plot points in Neal Stephenson’s novel REAMDE, one of the books I mentioned in my post this summer.  And another author that I wrote about, Charles Stross, has decided to not write the third book in his near future cybercrime trilogy because the present is already arriving at his imagined future. Here’s how Stross put it:

At this point, I’m clutching my head. “Halting State” wasn’t intended to be predictive when I started writing it in 2006. Trouble is, about the only parts that haven’t happened yet are Scottish Independence and the use of actual quantum computers for cracking public key encryption (and there’s a big fat question mark over the latter—what else are the NSA up to?).

I’m throwing in the towel.…<snip> …The science fictional universe of “Halting State” and “Rule 34″ is teetering on the edge of turning into reality. Meanwhile, the financial crisis of 2007 forced me back to the drawing board for “Rule 34″; the Snowden revelations have systematically trashed all my ideas for the third book.

Our colleagues in the world of architecture and design have “design fiction”: films and websites devoted to as-yet non-existent objects as a means of thinking about the possibilities of design and engineering and their relationship to society.  Here are three very different examples (noted by Tobias Revell in the previous link): “New Mumbai,” “Microsoft’s Productivity Future Vision,” and “Post CyberWar.”

As lawyers, we spend much of our time looking at precedent, at the lessons of history.  We cannot stop doing that, as history is the great teacher. But we also have to remember that with every passing second, the future arrives. And, like the writers, the designers, the engineers, and the architects, we have to imagine what things may come, and how our work may shape the future and how the future may shape our work.

Because law is itself a disruptive technology.

More on Ukraine: All Normative Geopolitics is Local

by Chris Borgen

As the political crisis in Ukraine over the government’s decision not to sign an Association Agreement with the EU passes its second week, this conflict and the positioning over other Russian “Near Abroad” countries (especially Armenia, Moldova, and Georgia) are good examples of the interrelationship of norms and geopolitical strategy.

The situation has been largely described in terms of Putin’s reaction to these countries planning on signing new agreements with the EU.  While that is an important part of the story, it is only part. As I described in previous posts (1, 2), this is also very much a story of domestic disputes over norms, ranging from domestic laws to cultural practices.

And, closely related to this latter aspect of normative geopolitics, is the importance of domestic politics in country that has significant ideological divisions.

This might actually be another iteration of Ukraine’s strategy of balancing both Russia and the EU by playing both sides and committing to neither. Political analyst Nicu Popescu has written:

In fact, Kiev chose not to choose at all and tried hard to maintain the status quo in Ukraine’s foreign and domestic policies. Yet in his bid to buy time, President Viktor Yanukovich inadvertently precipitated the biggest crisis of his presidency to date.

Consider in relation to this the New York Times report that “[a]t virtually the same time” that Ukraine cabinet of minsters announced suspension of preparations to further integrate with the EU:

President Viktor F. Yanukovich, who was on a visit to Vienna, issued a statement saying, “Ukraine has been and will continue to pursue the path to European integration.”

In a move emblematic of Ukraine’s often inscrutable politics, Mr. Yanukovich barely acknowledged the developments in Kiev and, responding to a reporter’s question about the pacts with Europe, said, “Of course, there are difficulties on the path.”

Was this an attempt to soften the blow that Ukraine is turning its back on the EU or some complex tacking to serve an immediate need (holding off Russian gas embargoes as the winter sets in) while deferring a longer term goal (increasing European integration)? Even Kiev-watchers seem a bit befuddled.

But that’s politics in a systemic borderland

(Continue Reading)

The Protests in Ukraine and Normative Geopolitics

by Chris Borgen

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

Guest Post: Behavioral International Law and Economics: Benchmark and Applications

by Anne van Aaken

[Prof. Dr. Anne van Aaken is Professor of Law and Economics, Legal Theory, Public International Law and European Law at the University of Sankt Gallen, Switzerland.]

I am delighted that Tomer Broude commented on Opinio Juris on the potential and the pitfalls of the use of behavioral economics in international law and am equally happy that I am able to follow up on this. I will do so in two steps: the first part will address the benchmark against which Behavioral International Law and Economics (BIntLE) should be measured in my view. The second mentions some of the applications I suggest in my paper and in an earlier article. Tomer and I are currently planning a book together, bringing together the insights of both of our papers and extending them considerably.

In his introduction to the topic, Tomer comments on the relationship of “Behavioral International Law” to rational choice approaches in international law and international relations.

Behavioral Economics is an empirically validated theory about human behavior. There are of course competing theories in social science. The psychological research is not free-floating and it is not used as such in the field of international law and international relations. Tomer suggests as a basis from which to depart sociological approaches. Sociology as such does not have a unified behavioral model, thus one would need to clarify which sociological theories are drawn upon (e.g. the homo sociologicus as advanced by Ralf Dahrendorf (micro theory of individual behavior), system theory (macro theory), etc.). I suggest as a benchmark rational choice theory, for two reasons.  First, the psychological insights we use are commonly named behavioral economics, given that this research tests and challenges the rational choice hypothesis to a hitherto unknown extent (and the psychologist Daniel Kahneman won the Nobel prize in economics). But behavioral economics is not yet at a stage where it has a unified behavioral theory replacing rational choice: many heuristics and biases depend on the decision-making context (those have to be studied carefully). Rational choice is still the benchmark against which the insights are measured. Second, the parsimony of rational choice makes it a natural starting point. Since behavioral research adds complexity (something which every academic should try to avoid if a simpler explanation is possible for answering a certain research question), it has to show that it generates better insights and is able to explain phenomena which cannot be explained drawing on the rational choice approach alone. To use a coin minted by Einstein: “Everything should be as simple as it can be, but not simpler.” A rational choice approach might sometimes be too simple. Tomer and I share the belief that behavioral economics is able to generate more and better insights to the functioning of international law and we share also the deliberations on the methodological problems this might generate. Because of the weight I put on parsimony, I shift the burden of proof on BintLE to show that it might generate better insights than a rational choice approach to international law. This has to be done step by step, analyzing different fields of general and special international law. After all, it will be the empirics which will validate (or not) the research hypotheses advanced by any theory: the proof of the pudding is in the eating.

Having said that, let me turn to some promising insights, adding to Tomer´s suggestions in his paper and his post. (more…)

The International Law Commission’s 65th Session (2013)

by Sean D. Murphy

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations' International Law Commission.]

For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65th session in Geneva held during the summer of 2013, as well as the Commission’s Guide to Practice on Reservations to Treaties (which could not be debated last year due to Hurricane Sandy). Both the 2013 Annual Report and the Guide to Practice may be found at http://www.un.org/law/ilc. Further, those interested in watching the debate live can do so on U.N. TV at http://webtv.un.org/ .  Finally, in due course, summary and some verbatim records should be available at the U.N. PaperSmart portal, which is at http://papersmart.unmeetings.org. This posting will focus on the issues discussed in the 2013 Annual Report.

First, the Commission made progress in addressing the immunity of state officials from foreign criminal jurisdiction by adopting preliminarily three draft articles in what is expected to be a series of draft articles. Draft article 1 indicates the basic scope of the project (immunity of state officials from the criminal jurisdiction of another state) and makes clear that the articles are “without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Draft Article 2 on definitions is being held in abeyance until further along in the project, but Draft Article 3 indicates that:  “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.” By identifying these three persons (sometimes referred to as “the Troika”) as entitled to status-based immunity, the Commission is differing from dicta of the International Court of Justice in the Arrest Warrant (D.R.C. v. Belgium) case, where the Court suggested a potentially broader sweep for the immunity. There the Court asserted in paragraph 51 of the 2002 judgment that “it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” Draft article 4 asserts that immunity ratione personaes is enjoyed only during those three officials’ term of office, that it covers all acts performed (whether in a private or official capacity), and that the cessation of the immunity thereafter is without prejudice to the application of the rules of international law concerning immunity ratione materiae. The Commission will now await the special rapporteur’s subsequent reports, in which she will explore immunity ratione materiae, possible exceptions to immunity, and procedural matters, with associated draft articles and commentary.

Second, the Commission adopted five draft “conclusions” in what is expected to be a series of conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Draft conclusion 1 basically situates the topic within the rules on treaty interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), and stresses that the “interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32.”  Where the subsequent agreements and practice establish agreement among all the parties to the treaty, it “shall be taken into account” under VCLT Article 31(3), whereas “recourse may be had” to other subsequent practice in the application of the treaty as a “supplementary means “of interpretation under VCLT Article 32. Notably, draft conclusion 1 confirms the status of Articles 31 and 32 as customary international law.

Draft conclusion 2 indicates that… (Continue Reading)