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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.

AJIL Symposium: Response to comments on “A New International Human Rights Court for West Africa”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

Many thanks to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun for their challenging and insightful comments our AJIL article, A New International Human Rights Court for West Africa. We are pleased to have provoked a debate about the drivers of legal integration in Africa and to see this debate linked to a larger set of literatures.  We hope that this symposium will encourage others to investigate the forces that have shaped regional integration projects around the world and to use evidence from ECOWAS to inform regional integration theory in general.

Our article attempts to stay on firm empirical ground and to generate as complete and accurate an account of the ECOWAS Court’s transformation as one can have at this moment in time.  But here is the rub—what does it mean to say “at this moment of time?”

There were many questions that we could not answer in research conducted only a few years after the events in question. For example, we did not interview the member state officials who debated the expansion of the Court’s jurisdiction.  This was in part due to a lack of time and money, but also because doing so was unlikely to yield different or more complete information.  The decision to extend the Court’s jurisdiction is recent and still contested.  This makes it tricky to interview participants, whose answers may be colored by or speak to the sentiments of the day.

Someday, African scholars may write a version of the recent book The Classics of EU Law Revisited, which examines foundational ECJ rulings fifty years later. The passage of time allowed EU historians to access personal archives and analyze the views of key individuals, and thereby reconstruct what happened before, during, and after these rulings.  We look forward to the day that our account of the ECOWAS Court is similarly dissected.  For now, here are our tentative answers to some of the questions raised in this symposium.

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AJIL Symposium: Can the ECOWAS Court Revive Regionalism Through Human Rights?

by Horace Adjolohoun

[Dr. Horace S. Adjolohoun is a Senior Legal Expert at the African Commission on Human and Peoples’ Rights. He recently completed his LLD thesis on Giving Effect to the Human Rights Jurisprudence of the ECOWAS Court of Justice: Compliance and Influence at the University of Pretoria.]

I agree with Alter, Helfer and McAllister that progressive judicial lawmaking may be risky, particularly in an environment where domestic politics are not in favor of a supranational court that limits the sovereignty margin of state organs. In the context of the ECOWAS Court of Justice (ECCJ), an interesting question could therefore be whether, by a purposive adjudication, the Court could read community law through its human rights mandate. The Court has repeatedly given a negative answer, and many have warned of the related risks, particular bearing in mind the fall of the SADC Tribunal. An association of factors makes me suggest that the chance could be worth taking.

The ECCJ is the official judicial body in which ECOWAS has vested the mandate to oversee the interpretation and application of norms adopted under the aegis of the Community (‘original’ Community law). I suggest that the African Charter has acquired the status of Community law because of its ‘constructive’ incorporation in ECOWAS instruments, particularly the 1993 Revised Treaty and the 2001 Governance Protocol. On the basis of the 2005 Court Protocol, the ECCJ has confirmed that status through its successive human rights judgments, starting from the first one in 2005. Article 31(1) VCLTTreaty law commands that interpretation of conventions should follow the ordinary meaning and not expand beyond the initial intention of the parties. Particularly, in the framework of regional integration arrangements, the ‘agency’ doctrine suggests that the Agent (here the ECCJ) may not usurp legislative functions by either interpreting the silence of the law in a particular direction (which I argue the ECCJ did in the Ugokwe case) or – and thereby – generating new norms that were not expressly formulated by law-makers (here, state parties)  (see Stone Sweet, 10-15). Some of the authors of the lead article support that approach in a previous work.

I agree that the silence of the 2005 Protocol regarding the well established international customary law rule of exhaustion of domestic remedies is as plain as was the lack of direct access for private litigants in the Afolabi era. Despite this, the ECCJ’s judges espoused purposive – and, in my view, ‘progressive’ – judicial lawmaking regarding exhaustion. The ECOWAS human rights ‘regime’ borrows from the African Charter-based system, which poses seven admissibility requirements for complaints to be accepted by the African Court and Commission. In the practice of the Commission, the rule of exhaustion is by far the one that attracts more contention. The 2005 ECCJ Protocol provides for ‘non-anonymity’ and ‘non-pendency’ as the two admissibility conditions.

From the foregoing, it is surprising that, in the course of lawmaking, ECOWAS states provided expressly for two ‘minor’ conditions, and remained silent for a ‘major’ condition, which has always attracted dispute. (more…)

AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

by Kofi Kufuor

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.]

In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment.

The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law – and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights.

However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems.

AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.

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AJIL Symposium: Comment on “A new International Human Rights Court for West Africa”

by Solomon Ebobrah

[Dr. Solomon T. Ebobrah is a Senior Lecturer at Niger Delta University.]

To date, ‘A new International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ authored by Karen Alter, Larry Helfer and Jacqueline McAllister is arguably the most eloquent scholarly exposition on the human rights jurisdiction of the ECOWAS Court of Justice (ECCJ) by observers from outside the African continent. This brilliant piece of work is to my knowledge, also the only one yet in existence to have taken a multi-disciplinary approach to the study of the ECCJ. Based on their very thorough and painstaking empirical investigation, the authors have successfully (in my view) supplied answers to some of the nagging questions that political scientists and lawyers would have regarding the budding human rights mandate of the ECCJ. As they point out in their opening remarks, intrigued (as the rest of us are) by the sharp but successful redeployment of the ECCJ from its original objectives of providing support economic integration to a seemingly more popular but secondary role as an international human rights court, the authors apply this article for the purpose trying understand and explain the rationale and manner of this transformation.

The authors have made very compelling arguments in support of their theoretical claim that international institutions, including international courts adapt to changing norms and societal pressures such that rational functionalist goals do not exclusively determine how a given international institution ultimately turns after its creation. While I find myself in agreement with much of the article, it is in relation to this claim and the evidence supplied by the authors in proof thereof that I find my first challenge. (more…)

AJIL Symposium: Introduction to “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

The ECOWAS Community Court of Justice is an increasingly active and surprisingly bold adjudicator of human rights cases.  Since acquiring a human rights jurisdiction in 2005, the ECOWAS Court has issued more than 50 decisions relating to alleged rights violations by 15 West African states. The Court’s path-breaking cases include judgments against Niger for condoning modern forms of slavery, against Nigeria for impeding the right to free basic education for children, and against the Gambia for the torture of dissident journalists.

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, recently published in AJIL, explains how a sub-regional tribunal first established to help build a common market was later redeployed as a human rights court.  We investigate why West African governments—which set up the Court in a way that has allowed persistent flouting of ECOWAS economic rules—later delegated to ECOWAS judges a remarkably expansive human rights jurisdiction over suits filed by individuals and NGOs. Our theoretical contribution explains how international institutions, including courts, evolve over time in response to political contestation and societal pressures.  We show how humanitarian interventions in West Africa in the 1990s created a demand to expand ECOWAS’s security and human rights mandates.  These events, in turn, triggered a cascade of smaller reforms in the Community that, in the mid-2000s, created an opening for an alliance of civil society groups and supranational actors to mobilize in favor of court reform.

The creation of a human rights court in West Africa may surprise many readers of this blog. Readers mostly familiar with global bodies like the ICJ, the WTO and the ICC, or regional bodies in Europe and the Americas, may be unaware that Africa also has active international courts that litigate important cases.  Given that ECOWAS’ primary mandate is to promote economic integration, we wanted to understand why its court exercises such far-reaching human rights jurisdiction.  Given that several ECOWAS member states have yet to accept the jurisdiction of the African Court of Human and Peoples’ Rights, the ECOWAS Court’s ability to entertain private litigant complaints—without first requiring the exhaustion of domestic remedies—is especially surprising.  We also expected that even if ECOWAS member states decided to create such a tribunal, they would have included robust political checks to control the judges and their rulings.

What we found—based on a review of ECOWAS Court decisions and more than two dozen interviews with judges, Community officers, government officials, attorneys, and NGOs—was quite different.  The member states not only gave Court a capacious human rights jurisdiction, they also rejected opportunities to narrow the Court’s authority.

Our AJIL article emphasizes several interesting dimensions of the ECOWAS Court’s repurposing and subsequent survival as an international human rights tribunal.

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AJIL Symposium this week

by An Hertogen

This week we’re hosting a symposium on both lead articles in the October 2013 edition of the American Journal of International Law.

Today and tomorrow, Kofi Kufuor, Solomon Ebobrah and Horace Adjolohoun discuss “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Karen Alter, Larry Helfer and Jacqueline McAllister:

The Court of Justice for the Economic Community of West African States has
been transformed from an interstate tribunal for resolving disputes over
ECOWAS economic rules into a court with far-reaching human rights jurisdiction.
This article identifies political mobilization, rather than judicial lawmaking,
as the catalyst of this transformation, and explains the surprising reality that,
whereas private actors in recent years have been able to pursue legal actions alleging human rights violations, they remain unable to challenge state noncompliance with ECOWAS economic rules.

On Wednesday and Thursday, Ulf Linderfalk, Bart Szewczyk and Richard Gardiner discuss “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?” by Julian Davis Mortenson:

It is often said that the Vienna Convention on the Law of Treaties relegated drafting history to a subsidiary role in treaty interpretation. This article relies on a
close reading of the Convention’s own drafting history to challenge that view.
Under the settlement actually negotiated by the drafters, reference to travaux
préparatoires was meant to be a regular, central, and indeed indispensable component of the interpretive process.

As always, we welcome your comments too.

LJIL Symposium: A Response to Professor Brad R. Roth on (Empty?) Promises of Self-Determination

by Zoran Oklopcic

[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights]

I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more precise normative meaning.

In other words, it is less so that my argument misses the target, than that his ‘emptied’ understanding of self-determination is robust enough to sustain a political critique. I say ‘political’, because the norm of self-determination is not just an object of legal exegesis; its understanding, perhaps more than any other norm of international law, betrays a particular political vision, not only of state-formation, but of the political ordering of the world as well.

My project was not to offer a new jurisprudential reading of self-determination, nor to insist that the accommodation of nationalist pluralism must be reintroduced as part of “external” self-determination’s promise. In reading Roth’s, Cohen’s and Krisch’s recent contributions primarily as political theories of pluralism with an emancipatory promise, I was more interested to argue that global pluralist commitments have, in the past, been accompanied by global or regional political visions that have sustained them, and which have provided space for the recognition and accommodation of ethnocultural pluralism. For example, demands for the accommodation of national or racial diversity in some cases, such as in French West Africa in the 1950s, initially took the form not of external self-determination, but rather of the wholesale constitutional transformation of transcontinental empires, in a way in which it would have increased, if successful, the political stake of the imperial ‘periphery’ in the constitutional affairs of the metropole.

I hasten to add that from a doctrinal point of view, there is little to disagree with Roth. (more…)

LJIL Symposium: In Defense of a (Relatively) “Empty” Conception of Self-Determination

by Brad Roth

[Brad R. Roth is a Professor of Law at Wayne State University in Detroit, Michigan, where he teaches international law, comparative public law, and political and legal theory]

In “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary,” Zoran Oklopcic gives an enlightening account of a set of related approaches to the international norm of self-determination of peoples.  In this rendering, I have the honor of being cast as the representative of “Empty”:  that is to say, my approach to international legal pluralism “empties” the self-determination norm of the contents that might otherwise be supplied by ethno-nationalism or by “the democratic ideal of the consent of the governed.”  Although the expression had not occurred to me, I am pleased to defend – indeed, perhaps, to insist on – an “empty” conception of self-determination in preference to the alternatives on offer.

In a superficial sense, the term “self-determination” necessarily implies an emptiness as to the substance of what is determined; otherwise, the determiner would not be the “self.”  Yet on closer examination, externally-dictated substance inevitably creeps into the emptiness. The self-determination formula generally withholds judgment about what should count as legitimate public order in particular territories, but in addressing myriad local political struggles – struggles not only over what is determined, but over the delimitation of the self – it nonetheless deviates from impartiality in two ways.
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LJIL Symposium: A Response to Professor Eeckhout and Professor de Wet

by Devika Hovell

[Devika Hovell is a Lecturer at the London School of Economics]

Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below.

The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.
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LJIL Symposium: A Comment on Devika Hovell’s “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making”

by Erika de Wet

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]

The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.

My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.

Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.

While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration. (more…)