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International Legal Theory and Teaching

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)

Behavioral International Law: What Is It Good For?

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

Having set out general considerations and a research methodology framework for “Behavioral International Law” in previous posts, some readers might be wondering how this all cashes out for international law as a discipline?

In their path-breaking 1999 YJIL article on economic analysis of international law, Jeffrey Dunoff and Joel Trachtman noted that “almost every international law research subject could be illuminated, to some degree, by these research methods” [referring to economic analysis]. With similar caveats, it is tempting to say something similar and related about behavioral analysis and international law. Behavioral international law is not a ‘theory of everything’. Neither is it a normative framework of analysis, as such. But properly constructed behavioral research selectively employing the methodologies I describe here can significantly increase our knowledge in all areas of international law, with respect to many problems and puzzles.

In my article, I developed three examples that cover the entire spectrum of levels of analysis as well as research methodologies. In all of them, a mere theoretical application is sufficient to stimulate discussion by posing alternative hypotheses and explanations, but if one is concerned with empirical accuracy, field studies and experimental work is necessary. Moreover, the examples – essentially three mini-articles – cover diverse areas of international law (treaty law, WTO dispute settlement and international humanitarian law). I will briefly summarize two examples.  (more…)

Behavioral International Law: A Methodological Framework

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

In my previous post, I tried to briefly introduce the merits of “Behavioral International Law”. Experimental research has shown that in many cases human behavior diverges from theoretical assumptions about rationality. Prospect theory, loss aversion, endowment effects, anchoring, hindsight bias, availability bias, conformity effects, framing effects – the list of experimentally proven, systematic diversions from perfect rationality in human behavior is long. The confines of a blog post preclude detailed discussion of any of these biases and heuristics; the literature in cognitive psychology is vast. The important point, pursued by scholars over the last decade or so, is that this knowledge of actual, rather than hypothesized or assumed, human behavior, can have significant implications for legal regulation. Why should this not be the case with respect to public international law?

A number of objections may arise, and I will mention two of them briefly here. The first would be that cognitive psychology and behavioral economics relate primarily to the conduct of individuals as (obviously) unitary actors, while the main subjects of international law are collective entities, primarily states. This presents a type of external validity problem: can the knowledge we have on human behavior, carry over to other actors? (more…)

Behavioral International Law: An Introduction

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.

Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “Nudges.gov” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).

Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them – generally known as biases and heuristics – inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.

Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one. (more…)

Interpretation isn’t just Meaning! The Existential Function of Interpretation in International Law

by Duncan Hollis

Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P).  For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context?  Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage.  For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?

Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”.  It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law.  At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation.  I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge).  Here’s the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the “existential function” of interpretation in international law. It explains how 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. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. 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). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

I’d welcome feedback if any of you find the paper is worth a read.

What’s Wrong with International Human Rights Law?

by Duncan Hollis

I’ve long admired Oscar Schachter’s idea that there is an ‘invisible college’ of international lawyers operating across the globe, all of whom share a common culture of professionalism and purpose in advancing international law.  Of course, with fragmentation the unity of that profession is more overtly stressed now than in the past (which, I suppose, should not be all that surprising since anyone who’s spent time within a “college” can attest to the occasionally sharp divisions that emerge among faculty and/or their students).

There is one area, however, where the unity of the international legal profession has, to date, appeared unchallenged — international human rights law.  To be sure, there are frequent debates over what this law contains, who has a voice in its interpretation and application, and how effective these rights may be in practice.  But, it’s almost taboo to challenge the concept of international human rights itself.  After all, since we’re all humans, who could oppose the idea that we all have (and are entitled to) certain universal rights?  Well, my colleague Jaya Ramji-Nogales has actually launched just such a challenge as part of a new research agenda, seeking to examine critically the concept of international human rights.  Her first step is a new draft article, ‘Undocumented Migrants and the Failures of Universal Individualism‘.  In it, she actually does something I don’t think I’ve seen an international lawyer do before — identify multiple conceptual problems with the very idea of a universal, international law of human rights.  It’s sure to be a controversial thesis.  But I also think it’s not one to be shouted down, but rather engaged with openly, especially by those who identify themselves as international human rights lawyers.  Here’s her argument in abstract form:

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.

 

For those interested in reading further, the paper is up on SSRN here.