Search Results

This chapter explains why the Clinton administration chose to sign, and the Bush administration chose to ‘unsign’ the Rome Treaty. Both argued that the Treaty violated the principle of sovereign consent and they both appealed to Vienna Convention on the Law of Treaties to support their argument. The chapter then asks why the US finds this argument so compelling when other democratic states are not threatened by the Court. The chapter offers an answer that goes beyond arguments that focus on America's national interests and its international responsibilities. Instead, it focuses on the cultural role that democratic consent plays in constituting America as a separate nation. The policy of opposing the ICC while offering alternative approaches to international criminal justice is, therefore, a representational practice designed to instantiate a particular image of America as well as a political move to protect the national interest.

Principal questions regarding the so-called ‘rules’ on conflict resolution such as the lex posterior maxim are still unresolved and disputed in international law just as in domestic law doctrine. These questions concern the legal nature of these maxims, their number, contents and legal consequences. It also relates to the structure of the legal order and basic principles such as pacta sunt servanda. This chapter argues that principles such as the lex specialis and lex posterior maxims should be regarded as subordinate interpretative criteria, which implies inter alia that there can be no abstract hierarchy between the lex posterior and lex specialis maxims. The chapter also examines problems relating to the lex superior, lex posterior, and lex specialis maxims, both in legal theory and international law. It analyses the problems of successive (multilateral) treaties, barriers to derogation (pacta tertiis principle etc.), and an eventual hierarchy of conflict principles in international law.

This chapter begins with a brief explanation of the approach used by the Committee on International Human Rights Law and Practice in preparing their report on the relationship between general international law and international human rights law. It then discusses the structure of international obligations, the formation of customary international law, treaty law, international law and domestic law, immunity, diplomatic protection, the right to consular notification, and state responsibility.

The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.

This chapter focuses on the two sources of international law: custom and treaties. Customary international law is the term used to describe rules that are so widely accepted and so deeply held that they help to define what it means to belong to a civilized society. The question of whether customary international law is binding on the United States came before the U.S. Supreme Court as long ago as 1900 in a case called Paquete Habana. Whereas treaty law often covers the same ground as customary international law. Torture is forbidden by customary international law, for example, and prohibitions against torture are also set forth in several multilateral treaties. The effect is to reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

This chapter examines how equitable notions included in treaties should be construed. While in the law of the sea treaties equity is understood as reflecting general international law, the ‘fair and equitable’ treatment of foreign investors under international investment treaties is frequently denoted as autonomous treaty-based standard giving rise to new customary law on investment. The chapter examines the application of treaty interpretation methods to ‘fair and equitable treatment’ and establishes that so-called ‘autonomous’ construction cannot be sustained under the Vienna Convention on the Law of Treaties. Instead, ‘fair and equitable treatment’ reflects the general international law standard on the treatment of foreign investors. This chapter also concentrates on the construction of ‘fair and equitable treatment’ in the 2001 opinion of the NAFTA Free Trade Commission, and subsequent reaction by NAFTA Tribunals, as an issue of the agency of interpretation (above Chapter 16).

The Hungarian Constitution attempts to regulate, although not very successfully, the relationship between international law, Community law, and national law in Articles 2/A and 7. However, the Constitution neither determines the status of Community law in the Hungarian legal system, nor explicitly regulates the status of international law. On the one hand, primary Community law (i.e., only treaty law) is to be handled according to the aforementioned articles, while on the other hand, the Hungarian legal system adopts a dualist approach towards international law. Thus, the Hungarian legal system is not particularly friendly to international agreements.

This chapter attempts to explain the contemporary practice of case-by-case development of fair and equitable treatment with the four corners of the law of treaties and without relying on general international law (to which the next chapter is devoted). After considering the possibility of viewing fair and equitable treatment as either a rule formulated in a general manner or a rule related to equity of different normative densities, the traditional interpretative framework of the Vienna Convention on the Law of Treaties is adopted to the examine the practice. It is concluded that the practice of referring to pari materia interpretations cannot be explained within the traditional interpretative framework (without referring to general international law), and that the traditional rules on sources and interpretation have not been superseded by the recent developments.

In the absence of an accepted international definition of terrorism, this chapter evaluates the international community's response to terrorism in treaty law. It shows that since the 1960s, many anti-terrorism or sectoral treaties have objectively regulated specific activities often described politically as terroristic, without creating a distinct generic crime of terrorism, or distinguishing political form private violence. It describes many unsuccessful efforts since the 1920s to generically define and criminalize terrorism in treaty form. It argues that several attempts at definition indicate that the international community has repeatedly attached importance to terrorism, and illustrate the basic elements on which the definition debate has focused, including the debate since 2000 about a UN Draft Comprehensive Convention.

Like obligations erga omnes, norms of jus cogens protect the common interests of states and basic moral values. In addition, the classic examples of norms of jus cogens that emerged during the codification of the law of treaties (which led to the adoption of Article 53 of the Vienna Convention) largely coincide with the examples of obligations erga omnes given by the International Court, and some characteristic expressions attaching to jus cogens (such the international community ‘as a whole’) occur also in the dictum on obligations erga omnes. There are also differences, though, starting from the ‘value-oriented’ approach adopted by the International Court as opposed to the ‘test-oriented’ approach reflected in Article 53 of the Vienna Convention on the law of treaties. This chapter examines the concept of jus cogens, with particular regard to the controversial issue whether norms of jus cogens allow for persistent objectors.

One of the characteristic elements of the work of Bruno Simma consists of his exploration of the community interest in international law, and perhaps more particularly in the law of treaties. His early article on material breach in the then still pending Vienna Convention on the Law of Treaties (VCLT) already pays some attention to this, and even more so his path-breaking work on objective regimes. This chapter delves a little into the genesis of the VCLT, with a view to exploring whether the founders of the VCLT were aware of several issues and to what extent they aspired to come to terms with them. This is of some relevance, needless to say, since it has become clear that the law of treaties ‘has issues’ when it comes to its application to normative multilateral instruments. In this light, it is potentially valuable to see what the founding fathers thought, and whether the VCLT might be said to contain secret ‘trapdoors’ which would facilitate its application to normative multilateral instruments.

This chapter discusses ‘constitutional’ interpretation of a Charter. It compares the United Nations Charter and the United States Constitution, citing that both provide institutional mechanisms to accomplish goals identified only as ‘majestic generalities.’ As with the U.S. Constitution, there also appears to be a separation of powers notion at work within the UN Charter. The chapter also provides details on the people, procedure, and reason behind interpreting a Charter. It considers how international organization organs have interpreted their chapters, indicating the malleability of both institutional charters and the underlying rules of treaty interpretation. In detailing the procedure of interpreting a Charter, it mentions the Vienna Rules of Treaty Interpretation, institutional practice, implied powers, and intent. The interpretation of international organization charters is more than the sum of the application of rules — whether contained in the Vienna Convention on the Law of Treaties or reserved for ‘constitutional’ treaties.

This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force behind the word as foundations in the search of beginning and meaning. None satisfied him and he ultimately found the solution in the deed. The chapter reads discussions in the International Law Commission surrounding the Vienna Convention on the Law of Treaties and its rules of interpretation through the lens of Faust’s quarrels. It introduces the challenge for both sources doctrine and received ideas about the nature of interpretation that comes with semantic pragmatism and the proposition that it is the deed that generates meaning and legal normativity. The chapters draws attention to the legitimacy implications of this challenge in the specific constellation of the international legal order and sets out the book’s agenda.

This chapter discusses that law, including international law, has a threefold social function. It notes that it is a presence of the social past, the organizing of the social present, and the conditioning of the social future. It talks about eight systematic implications of such an idea of the social function of law in general, and of international law in particular. It explains that the psychology of the public mind is a manifestation of the psychology of the private mind. It clarifies that common interest is not merely an aggregation of particular interests, but it is formed at the intersection between the ideal and the real, as a society responds to its current and potential situation in the light of its continuing theories, values, and purposes. It also talks about the construction of the two kinds of international law: customary international law, and treaty-law.