Public International Law

Is Characterization of Treaties a Solution to Treaty Conflicts?

by Ahmad Ali Ghouri

Chinese Journal of International Law 2012; doi: 10.1093/chinesejil/jms034

The Vienna Convention on the Law of Treaties (VCLT) rules on the resolution of treaty conflicts are known as being... more The Vienna Convention on the Law of Treaties (VCLT) rules on the resolution of treaty conflicts are known as being despondently unhelpful. One identified lacuna is that these rules disregard many differences present in different kinds of treaties. This paper characterizes treaties on the basis of their differences and investigates whether this yields legal rules to resolve treaty conflicts. This paper presents three broad characterizations founded on: (A) the subject matter; (B) the number of State Parties; and (C) the intended objects and purposes of treaties. Respecting the intended objects and purposes, this paper presents three sub-characterizations, namely: (i) universal character treaties; (ii) constitutional character treaties; and (iii) treaties with conflict resolution
clauses. The results are variegated, but the discussions expose the mythic role of treaty characterization in the resolution of treaty conflicts.

Short Flight of the Phoenix: A Few Thoughts on Good Faith, the Abuse of Rights and Legality in Investment Arbitration

by Filip Černý

published in the Czech Yearbook of International Law vol. III, 2012: Public Policy and Ordre Public, New York: Juris Publishing 183-207 (A. Bělohlávek & N. Rozehnalová eds. 2012).

As a point of departure for this contribution the general and intertwined principles of legality, the abuse of rights... more As a point of departure for this contribution the general and intertwined principles of legality, the abuse of rights and good faith are examined, which have emerged repeatedly in the last
few years throughout the case law of the International Centre for the Settlement of Investment Disputes. The present article provides an analysis of the concept and application of these principles, which have entered into the investment protection domain mainly through public international law and which, as such, form a part of international public policy. The article examines the underlying concept of the principle of good faith in detail as it stems from public international law. The main focus is on ICSID case law where these principles were applied, with special attention given to the first Czech ICSID case, the Phoenix Action, which at the time of its initiation began the discussion on the extent of the jurisdiction concept under ICSID. The problematic aspects of the conclusion of this tribunal are discussed and solutions are suggested for future disputes of a similar nature.

Shifts in International Boundary Rivers

by Rafał Mańko

(as co-author); published in: (2002-2003) 26 Polish Yearbook of International Law 135

The aim of this article is to present the rules of public international law relating to shifts in international... more The aim of this article is to present the rules of public international law relating to shifts in international boundary rivers, showing their historical origin and the legal basis of their binding character in the international legal order.

Introducción al estudio de las normas de ius cogens en el seno de la Comisión de Derecho Internacional - CDI

by Ricardo Abello-Galvis

Published in Vniversitas Law Journal, Vol. 123, 2011

This article analyses the origin of ius cogens rules through its evolutionary process in the International Law... more This article analyses the origin of ius cogens rules through its evolutionary process in the International Law Commission. In particular, the article includes the work of special rapporteurs dealing with the law of treaties project, in which the concept of imperative rules and ius cogens was studied. Some differences between these rules and humanitarian law have also been included.

According to Article 53 of the Vienna Convention on the Law of Treaties, a peremptory norm “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

Whither the Private in Global Governance?

by Christine Schwöbel

In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law –... more In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law – at the expense of private law. In this paper I question what the obscuring of private law conceptions and methodologies implies and whether international lawyers should pay more attention to such private law. Significantly, the burial or the obscuring of private law is predominantly occurring in theoretical rationalizations of ideas for holistic legal frameworks. De facto, private law has never been so prominent in the international sphere; indeed, it can be claimed that globalization is largely driven by private law. Suggestions for the accountability and transparency of transnational corporations, private military companies, and bilateral investment treaties are prominent examples of how public law solutions are being applied to private legal relations. Global governance and its inherent multifaceted und multifarious nature could capture private law impulses but instead is framed in a way to obscure them. In this, global governance is being aligned, largely by international lawyers, with other similar public law frameworks, including global constitutionalism and global administrative law. I argue that private law conceptions and methodologies should be taken seriously within global governance discourse as conceptions with progressive potential which do not take recourse to the power imbalances evident in most public law conceptions.

„Piercing the Corporate Veil“ is relative

by Leonid Shmatenko

Published in: 4 Young Arbitration Review 25 - 29 (2012).

Every legal term has a specific meaning. In order to
determine the meaning of a given legal term, regard has to... more Every legal term has a specific meaning. In order to
determine the meaning of a given legal term, regard has to be made, inter alia, to the context in which it is used (systematic interpre-tation).
A given legal term may thus have different implications, depending on the context (specifically: the legal “framework”) in which it is used. Correspondingly, the meaning of the legal term “piercing the corporate veil”, which is the core aspect of this essay, is also relative.
This essay seeks to name certain areas of the law in which the term is used and to highlight and describe its context-specific meaning and to show its evolution in investment arbitration deriving from a mainly common approach with commercial arbitration.

The Contemporary International Law Status of the Right to Receive Asylum

by William Worster

Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the... more Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under
customary international law.

The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of
the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-à-vis other states to grant asylum to aliens and not have that act be viewed as hostile.

However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international
law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.

F. Sindico, “The Guarani Aquifer System and the Law on Transboundary Aquifers”, 13 International Community Law Review (2011), pp. 255-272

by Francesco Sindico

Argentina, Brazil, Paraguay and Uruguay signed the Guarani Aquifer Agreement on 2 August 2010. This is the first... more Argentina, Brazil, Paraguay and Uruguay signed the Guarani Aquifer Agreement on 2 August 2010. This is the first international treaty regarding the management of a specific transboundary aquifer to have been adopted after the UN International Law Commission (UNILC) adopted the Draft Articles on the Law of Transboundary Aquifers, which have been annexed to UN General Assembly Resolution 63/124. The latter encourages States to take into account the Draft Articles when devising arrangements for the man- agement of specific transboundary aquifers. The Guarani Aquifer Agreement, therefore, is a first response to this call from the international community. In this article the background to the Guarani Aquifer Agreement is explored, including an overview of the key characteristics of the Guarani Aquifer System and the steps that have led to the adoption of the Guarani Aquifer Agreement. Sovereignty, the obligation to cooperate and the incipient institutional framework are discussed as key elements arising from the Guarani Aquifer Agreement. Finally, the article argues that a link between the latter and the UNILC Draft Articles can be appreciated. This link has important practical implications especially in relation to the applicability of the UNILC Draft Articles for interpretation purposes of the Guarani Aquifer Agreement.

The Effect of Leaked Information on the Rules of International Law

by William Worster

International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation... more International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation of rules, so when confronted with the growing availability of leaked information naturally we might be cautious in considering how the leaks are affecting international law. This paper will assess the growing influence of leaked information on the rules of international law and argue in favor of their use. This paper is not especially focused on WikiLeaks, though it is representative of the phenomenon and is the source used primarily for this paper. Due to the presence of it and similar actors, the availability of leaked information is growing and leaked information is now becoming significant in international affairs.

This paper will walk through the various sources of law, generally following the structure of article 38(1) of the Statute of the International Court of Justice, although with some additions as may be relevant, and examine each source to see whether and how leaked information might contribute. As threshold matters, ex turpi causa non oritur actio, “the fruit of the poisonous tree”, and similar principles are examined, however, those principles can be dismissed for a number of reasons.

The first source of law to be discussed is treaties for two purposes. Firstly, the paper assesses the definition of a treaty and considers whether leaked information might amount to a secret treaty, and secondly, it assesses the evidentiary function of leaked information in interpreting treaties.

After treaties, the paper considers the ways in which leaked information might contribute to the formation of customary international law, primarily the ways in which leaked information might evidence practice and opinio juris.

Lastly, the author also considers the potential for leaked information to contain binding unilateral statements and the role that leaked information might play in the law-making function of international organizations.

Following the examination of the sources of law, the paper takes a brief detour to examine the ways in which leaked information might impact the international legal personality some entities enjoy. Leaked information might have a bearing on both the law to be applied and the facts to be established. In particular, the Holy See and Kosovo will be discussed.

We appear to be moving into an era of increased access and transparency of information, and inability to prevent the viral spread of leaks. Law, and international law in particular, must take cognizance of this change and absorb it. It is possible, although the growth in leaked information might have a greater effect in the future. It might even inspire changes in some of the more fundamental notions that underpin the law.

The Transformation of Quantity Into Quality: Critical Mass in the Formation of Customary International

by William Worster

The formation of customary international law has long been criticized for its lack of a clear methodology,... more The formation of customary international law has long been criticized for its lack of a clear methodology, characterized by an ambivalent relationship with state consent. Although customary international law seems to be entirely a creature of state consent, after all it is based on actual practice, in reality the fit with state consent is loose at best. Customary international law only awkwardly bridges the gap between a descriptive and prescriptive norm. Unable to move forward, the study of the formation of customary international law appears to have largely reached an impasse. Yet, states still appear to support and apply customary international law as a source of law, so we are faced with the situation of embracing a source of law that we do not understand well and where the applicable law is often vague.

This article is an attempt to bring into international law a perspective from the hard and soft sciences for discussing the formation of customary international law, specifically the study of critical mass in collective group behavior. This language is not entirely new to discussions on customary international law. Where it has been mentioned, the implications of critical mass theory have not been fully explored. Critical mass can be a loose concept to simply describe the accumulation of small actions that result in large shifts in collective behavior; however, it is also an empirically-based scientific study that attempts to assess how those changes come about. This article seeks to delve more deeply into critical mass and apply the insights from this study to the formation of customary international law.

Following a very brief introduction with background on customary international law, the paper will describe how the social sciences have embraced the critical mass theoretical perspective in the study of collective decision-making. Three primary elements of social change will be identified: (1) the importance of the content of the norm, (2) the role of influence through networks, and (3) the role of key individuals, “opinion leaders” and “opinion diffusors”.

Following this review of the science, the author will draw some implications for customary international law. In particular, the author will re-characterize three major discussions within customary international law into the three key factors of critical mass. The first discussion is that over the qualitative assessment of norms. The second is the growing influence of networks either as transnational governance or international organization rule-making. The final discussion is a proposal to understand the role of the “specially interested” state as a norm entrepreneur. The paper will conclude that study of critical mass can contribute to a better, and more formal, methodology for understanding customary international law.

Reviewing the Security Council: The Role of Other International Organisations

by Matthew Happold

University of Luxembourg Law Working Paper No. 2011-04

The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again... more The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again how extensive its powers are. Acting under Chapter VII of the Charter of the United Nations, the Council has imposed an arms embargo, frozen Libyan assets, referred the situation to the International Criminal Court, ordered a ‘no-fly zone’ and authorized the use of force short of occupying the territory to enforce it and to protect the civilian population. But, of course, ‘For unto whomsoever much is given, of him shall be much required’ or, to put it in contemporary idiom, ‘With great power comes great responsibility.’ Although we might agree that the Security Council is justified in acting to prevent a humanitarian catastrophe, the powers it disposes can be used for both good and ill.
So what happens if and when the Council’s great powers are exercised irresponsibly? In this lecture I want to deal with two issues. The first is whether the Security Council is legibus solutus: that is, unbound by law. This examination, however, will only be preliminary to my second inquiry, which will consider which bodies are entitled to review the Security Council’s decisions to determine their vires and what, if they conclude that the Council has exceed its powers, they can do about it.

On the Purposes of Legality and its Applicability to International Law

by William Worster

Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge:... more Book Review: Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009), 632 pp. £64.00 (Hardback) ISBN 978-0-52-188648-2

Law, Politics, and the Conception of the State in State Recognition Theory

by William Worster

The competing theories of state recognition and their failings actively demonstrate that recognition of a state does... more The competing theories of state recognition and their failings actively demonstrate that recognition of a state does not have any normative content per se, but rather, that the rules of state recognition, although legal rules, are legal vehicles for political choices. We have the dilemma of concurrently wanting the right cases to result in independent states while prohibiting the wrong ones from becoming so, and so we sail between political choices, using the language of law. The state is neither truly free to recognize another entity nor entirely bound. Differing cases require different legal criteria and different legal results. This flexibility in state recognition theory though, while depriving the act of any inherent legal meaning, has value in its utility for establishing lawful relationships.

This paper will argue that the reason we find it difficult to resolve the controversy over state recognition theory is because the international legal system translates political controversies into legal questions that can then be addressed through legal means. Legal actors, by announcing preference for one side of the question, often reveal certain legal and moral choices they are making about the nature of the state and the legitimacy of the international legal system - law and politics. In the area of state recognition, no theory of recognition has extinguished competition because no political choice has gained universal acceptance. The predominant political choice is most frequently deliberate indeterminacy, a co-existence of mutually opposing arguments. This indeterminacy is most likely deliberate because it permits the underlying rationale for the legal actor’s policies to change and evolve to suit the situation.

Competition and Comity in the Fragmentation of International Law

by William Worster

The international legal system encompasses a variety of legal norms, but the perceived increase in... more The international legal system encompasses a variety of legal norms, but the perceived increase in "fragmentation" of these norms has recently been seen as a problem for the system as a whole. Consequently, many writers have suggested forms of increased comity among international tribunals in order to combat the problems associated with fragmentation; indeed, locating harmonies among international legal regimes within a coherent international legal system appears to be the dominant trend. Yet these perspectives dismiss, or at the very least, largely overlook, the benefits of competition among international tribunals.

Fragmenting norms could provide opportunities for better norms, particularly since differing legal traditions bring differing norms to adjudication, all of which may have their relative strengths. This continual updating of law and legal dispute resolution is healthy for the law to maintain legitimacy while keeping up with social change. How popular courts weigh the need for equality, the right to a hearing, and so on might suggest a balance among principles that is the most just approach. Other tribunals may look to the decisions of more popular fora as examples of justice, and reform themselves and their image appropriately. Thus, increased competition may increase the diversity of legal norms and the legitimacy of the norms applied.

Any objection to the beneficial role of fragmentation is based on one's conception of justice and whether justice can be a democratic and competitive preference. If international tribunals are created by States in order to do justice among them, then being recognized as the most attractive forum is evidence that a particular tribunal may have a better appreciation for justice. Fragmentation may not be a problem to be solved, but rather, a sign that the international legal system needs to consider a variety of legal norms. As society's definition of justice evolves, so do many tribunals, not necessarily towards a top-down, constitutionalized, hierarchical system overseeing a coherent, unitary international legal order, or for that matter towards a network of friendly, lending, and borrowing professionals. Instead, they may affirm a bottom-up, vigorous system where different legal actors compete for the best realization of justice.

International Law and the Limits of Fairness

by John Tasioulas

In Defence of Relative Normativity: Communitarian Values and the Nicaragua …

by John Tasioulas

Customary International Law and the Quest for Global Justice

by John Tasioulas

Conflicts Between United States Immigration Law and the General Agreement on Trade in Services: Most-Favored-Nation Obligation

by William Worster

United States laws establishing qualifications for temporary, nonimmigrant classifications are potentially in... more United States laws establishing qualifications for temporary, nonimmigrant classifications are potentially in violation of the United States' obligations under the World Trade Organization's (WTO) General Agreement on Trade in Services (GATS). These violations, if ever the subject of a WTO dispute, may force the United States to choose between accepting trade sanctions and changing existing immigration policy under external pressure. In either case, by consenting to the GATS at the conclusion of the Uruguay Round of Multilateral Trade Negotiations (Uruguay Round) and not necessarily complying with it, the United States has incurred potential WTO liabilities. If a dispute over immigration law was successful, the United States would be forced by the coercive trade power of its international obligations to change what is normally considered one of the most sovereign of attributes of statehood, the very power to determine which aliens are qualified to enter and remain in the country.

The Evolving Definition of the Refugee in Contemporary International Law

by William Worster

Many scholars of international refugee law assert that there is no definition of refugee under international law... more Many scholars of international refugee law assert that there is no definition of refugee under international law except that given in the Refugee Convention. This assertion, however, overlooks the dynamic way that the Refugee Convention is interpreted and is usually made without a detailed analysis of customary international law. This article attempts to address this shortcoming in the literature by examining conventional and customary international law contributing to the contemporary definition of refugee. Furthermore, it will attempt to do this is an even-handed manner, concluding that the definition has expanded in favor of claimants in some aspects, but, actually, contracted against the favor of claimants in others.

First, the article will examine the definition of refugee under the Refugee Convention, especially the evolving technique for interpreting the Convention, to determine whether the definition has outgrown its conventional shell.

Second, the article will undertake a comprehensive analysis of state practice and opinio juris on this question, examining the most up-to-date sources. In particular, it will reflect on the role of specially interested or specially affected states in the formation of customary international law and the growth of “subsidiary” protection. Also the article will consider the contribution of the practice and opinio juris of international organizations in the frame of the contemporary international law’s understanding of the contribution international organizations can make.

Lastly, the article will look at the opposite side of the coin: the ways in which customary international law may have narrowed the definition beyond the terms of the Refugee Convention.
It will conclude by proposing the new definition of a refugee under conventional and customary international law based on the findings.

The Other Side of COIN: The Combatant/civilian Distinction, Terrorism and the Structure of War Law

by Heidi Matthews