International Treaty Law Research Articles

International Law in the Best of All Possible Worlds: An Introduction to G.W. Leibniz’s Theory of International Law

Today, the contribution by Gottfried Wilhelm Leibniz (1646–1716), the last ‘universal genius’, to the theory of international law is nearly forgotten. Leibniz was a lawyer by training (later in life holding prestigious positions such as Reichshofrat), and he acted as a diplomat and political advisor to the Duke of Hanover. His engagement with legal practice distinguishes Leibniz from other philosophers. Always looking for intellectual synergies, Leibniz integrated his knowledge of (positive) law into his legal theory. Leibniz provides the rare combination of an international legal theory which is both grounded in his metaphysics and natural law theory and inspired by his extensive study of the positive international law of his time (Leibniz was the first to systematically collect and analyse historical international treaty law). This article introduces Leibniz’s theory of international law by outlining the different conceptual layers of his notion of ius gentium, by explaining the functions of natural law for positive international law and by showing how natural law can shape the substance of international relations. The three ‘takeaways’ from Leibniz for contemporary international legal theory are the idea of ‘optimizing pluralism’, his ideas on synergies between ‘theory’ and ‘practice’, and, finally, his insistence on treating law as ‘legal science’.

The International Court of Justice and the Court of Justice of the European Union: Between Fragmentation and Universality of International Law

This chapter discusses how the Court of Justice of the European Union (CJEU) has used judgments of the International Court of Justice (ICJ) in its legal reasoning. The CJEU uses ICJ jurisprudence in three main ways: when discussing customary international law, when applying the law of treaties, and when using international law to interpret and develop principles of EU law. The chapter reviews the cases in which the CJEU and the Advocates General have discussed ICJ cases, including areas of international humanitarian law, diplomatic and consular law, nationality and citizenship, the law of the sea, and the international law of treaties. On the one hand, the CJEU’s use of ICJ case law may show its commitment to the universality and coherence of international law. However, the CJEU also has a strong commitment to the coherence and unity of EU law, and has emphasised the autonomy of the EU legal order. The chapter shows that, upon closer inspection, the CJEU interprets and applies ICJ jurisprudence through an EU law prism. It also shows that, over time, principles of international law are transformed into principles of EU law. In these instances, the CJEU no longer refers to ICJ/PCIJ jurisprudence, but as autonomous EU law principles. ICJ jurisprudence is used to fill gaps, or to support certain legal arguments, but it is not followed as if it were a hierarchically superior court.

The Treaty in International Law: Icon, Text, and Progeny

The treaty occupies a very special place in international legal practice, as well as in the consciousness and imagination of international lawyers. Existing international legal practice and scholarship about the treaty reveal a very strong dualistic theoretical thinking, the sophistication of which ought not to be underestimated. It is the aim of the first part of this chapter to sketch out these dualistic modes of thinking about the treaty. This paper does not take issue with the current dualistic modes of thinking about the treaty, but rather seeks to supplement them with new theoretical perspectives with a view to shedding light on three overlooked uses of the idea of the treaty in contemporary legal thought and practice. In particular, the second part of this paper shows the extent to which the idea of the treaty allows the creation of conceptual anachronisms in the making of historical narratives about international law, the simplification of the process of interpretation, and the construction of a magic descendance that shields those invoking the treaty from any responsibility for anything that is done in the name of the treaty. These three specific uses of the idea of the treaty in contemporary thought and practice are captured by virtue of a three-tiered heuristic that presents the treaty respectively as an icon, a text, and a progeny. This paper closes with a few concluding remarks on the alternative theorization suggested here.

International Obligations of Unrecognized State. The Case of Transdnistrian Moldavian Republic

Unrecognized states are formations separated themselves from another state and had declared itself a new self-standing state. The inner structure of the formation does not differ from the structure of other states in that it possesses a constitution, legal system and state bodies. But such a formation is not recognized by the international community in the capacity of a subject of international law or is recognized by a minor number of states.Unrecognized states do not have interstate treaties with UN members, yet this does not mean that no international obligations are obligatory for them. General principles of international law and peremptory norms are obligatory notwithstanding recognition. Moreover, unrecognized state sometimes accept voluntarily international obligations of some treaties, still they are not recognized as parties thereof. The status of unrecognized states differ from the status of other actors not states in international relations: sometimes intrastate or even non-governmental organizations, e.g. European union, are accepted as parties to international treaties. Unrecognized states can never become parties to international treaties. Thus a situation of irresponsibility is created, when an unrecognized state has no partners who could question a responsibility in case of a breach of international law; neither the jurisdiction of treaty bodies created to monitor implementation of the treaty obligations.Transdnistrian Moldavian Republic is a good illustration here. Its Constitution contains a rule that the generally recognized principles and norms of international law and international treaties are a part of its legal system. The Republic does not have interstate treaties, but accepted some normative acts on the recognition of the most important human rights treaties. This is in fact a joining of the Republic to the treaties. Yet the Republic is not a party to them because the Vienna Convention on the law of international treaties 1969 allows only the subjects of international law to conclude international treaties which unrecognized Transdnistria is not. Thus the situation is created where the international community cannot submit a claim of failure to fulfill a treaty to Transdnistria.We submit that this is not so with generally recognized norms and principles because an obligation is emerging in the contemporary international law that all actors of international intercourse must fulfill those principles and norms. The events around the indictment of the former President of the Republic are a good example of breach of international law. The Republic broke the European Convention on human rights which diminished the acceptance of international law by the Republic.

The United Nations Convention on the Rights of the Child: The Good, the Bad, and the Useless


 
 
 The United Nations Convention on the Rights of Children (UNCRC), put forth in 1989, has generated a global movement in the direction of protecting and promoting children’s rights, resulting in a paradigm change in how children are perceived under the law. While the UNCRC is the most widely ratified international human rights treaty in human history, children’s fundamental right to protection continues to be violated through actions instigated by adults, such as neglect, physical, sexual, or emotional abuse, or being coerced into marriage, wartime activities, or slavery. This is largely a result of international law having no empirical legal binding; since countries are sovereign upon themselves, without domestic enforcement by each individual signatory country, there is no obligation to abide by the terms of international treaties. Applying both a philosophical and legal framework, this paper seeks to provide a critical analysis of whether or not treaties of international law, such as the Convention on the Rights of Children (UNCRC), have an unyielded potential to spark a tangible, beneficial change in the promotion of children’s rights, or if such doctrines are nothing more than glorified pieces of lip service paid to bolster the signatory country’s face value on a global level.
 
 

The UN convention on the rights of the child: incremental and transformative approaches to legal implementation

ABSTRACTThe United Nations Convention on the Rights of the Child is a binding treaty of international law and, under Article 4, States Parties are required to take legal, administrative and other measures to implement its provisions. States Parties have interpreted this obligation in different ways, including the adoption of both legal and non-legal measures designed to embed the Convention in the national legal system. Direct incorporation of the Convention has been getting increasing attention with jurisdictions choosing to give it the effect of national law, while others have adopted creative approaches that give further effect to the Convention via indirect incorporation. Research has begun to document these varying approaches and to examine their impact and this paper sets out the lessons to be learned from this accumulation of international experience. Building on the themes of this special issue, the paper seeks to establish a knowledge base on Convention implementation to inform national level decision-makers and advocates as to how to give greater effect to the Convention at a national level. In this regard, it includes a discussion of the merits of the different approaches to implementation of the Convention and identifies the elements necessary to leverage change in the protection of children’s rights at the national level.

After the 8th: Ireland, Abortion, and International Law

By repealing the 8th amendment, the Irish people gave its government a strong mandate to liberalize its restrictive abortion laws. In this paper, we argue that international law has a significant role to play in the drafting, interpretation and monitoring of Ireland’s future proposed abortion law framework. We explore the relationship between international and domestic law, and argue that there are three key roles for international law in the current abortion context, namely: (1) ensuring at a minimum that new abortion laws are drafted in a way which respects Ireland’s international law obligations; (2) ensuring that laws are interpreted and implemented in a way which facilitates practical and effective access to abortion, and (3) providing avenues to challenge obstacles to securing legally available abortion services in Ireland. In making these arguments, we acknowledge that although Ireland is party to a variety of international law treaties which set out obligations in respect of abortion access, these obligations were conspicuously absent from the abortion debate in the lead up to the referendum. We argue that this stemmed from confusion around the extent of Ireland’s obligations in this context and the relationship between domestic and international law. In our view, international law’s lack of salience in the past is highly regrettable and we argue that it is vital that we do not repeat past mistakes. In short, engaging more closely with Ireland’s obligations in international law will play a key role in ensuring that the Irish government does not to waste this once in a generation opportunity.

Tax treaty override in Slovakia - Digital platform permanent establishment

The article analyses the new “digital platform permanent establishment” concept as a legal fiction establishing a fixed place even in situations where there is no actual fixed place. The authors conclude that in the Slovak legal environment this concept is not capable of (i) being applied through the interpretation of the tax treaty, or (ii) overriding the tax treaty. Its practical implications in a tax treaty situation must be analysed on a case-by-case basis. The ineffectiveness of the concept mainly stems from the fact that Slovak statutory rules are generally incapable of overriding tax treaties. It may still be applicable in a dualist legal environment, but international law treaty override implications would still remain valid.

Potential Legal Challenges to President Duterte's Decision to Withdraw the Philippines from the Rome Statute

On 17 March 2018, the Philippines withdrew from the Rome Statute, following the directive of President Rodrigo Duterte. The Philippines’ exit from the treaty creating the International Criminal Court (ICC) came in the wake of Prosecutor Fatou Bensouda’s decision to open a preliminary examination into President Duterte’s “war on drugs,” due to “reported incidents involv[ing] extra-judicial killings in the course of police anti-drug operations” which may constitute crimes within the jurisdiction of the ICC. Before delving into the impact, consequences, or effects of the Philippines’ departure from the ICC regime, one threshold issue needs to be addressed first: whether President Duterte’s decision passes legal muster to begin with. If the decision to withdraw the Philippines from the Rome Statute was vitiated by legal defects under international and/or municipal law, all propositions about how the ICC should henceforth proceed vis-a-vis the Philippines could potentially be rendered moot. Before embarking on any further inquiries, therefore, a conversation on this matter should first be had. To move this conversation forward, I argue in this paper that there are substantial issues that can be raised concerning President Duterte’s decision to withdraw the Philippines from the Rome Statute. Drawing from municipal and international law and jurisprudence, I raise two grounds to support the proposition that President Duterte’s decision is open to legal challenge: first, the decision, made unilaterally by President Duterte without securing consent from, or even giving notice to, the Senate (which concurred in the Rome Statute’s ratification) indicate a potential violation of the Philippine Constitution; second, the terms of his decision and the stated justifications on which it was predicated indicate potential violations of international treaty law. Either or both of these grounds can possibly render his decision legally defective.

Concept of a Treaty in Decisions of International Courts and Tribunals

Abstract This article investigates and analyses the work of the International Law Commission concerning what constitutes a treaty in international law, and the role of international courts and tribunals in developing the definition of treaty as enshrined in the 1969 Vienna Convention on the Law of Treaties (‘the VCLT’). The definition of the treaty in the VCLT is the starting point of the discussion. The article argues that there is a whole host of new elements which appear in the practice of international courts and tribunals (including the International Court of Justice) that supplement the classical definition in the VCLT. However, judicial practice in international courts and tribunals is rather diverse which inhibits the formulation of a uniform and consistent general rule in respect of the definition of the treaty outside that of the VCLT.

The concept of due diligence and the positive obligation to prevent honour-related violence: beyond deterrence

ABSTRACTThe duty of states to prevent private acts of gender-based violence forms part of both customary international law and treaty law. However, its scope remains unclear. This article explores the extent to which the concept of due diligence could clarify the content of the positive obligation to prevent a specific form of gender-based violence, namely honour-related violence. With this aim in mind, the article first discusses the concept of due diligence in international human rights law. Thereafter, it sets out to identify the components of the due diligence obligation to undertake general preventive measures against honour-related violence. The author concludes that the obligation to prevent violence with due diligence has implications both for the efforts that states must make and for the character of the measures. The standard of due diligence requires states to use their best efforts to adopt effective measures, which inter alia entails basing the choice of measures on relevant research and data. In order to prevent honour-related violence effectively, states also need to change attitudes upholding the violence.

Protection from Exclusion: A Reassessment of Union Citizenship in the Time of Brexit

The received wisdom on Union Citizenship is statist: it is thought to be intrinsically connected with the State of nationality being a Member State of the European Union, and so no one can be a Union citizen otherwise. The purpose of this article is to challenge this conception. It argues that Union Citizenship institutionalises the idea of individual membership in the EU and its legal order, into which individuals are included and from which they cannot be excluded en masse either by the European Union or the Member States. Citizens are protected against physical exclusion by way of extradition and expulsion and, even more so, against being stripped of Union Citizenship against their will. Union Citizenship, once conferred, cannot be removed without cause in the person of the citizen, even though the rights contained therein may change over time. This is, however, precisely the spectre of Brexit. The effect of this first withdrawal of a Member State on the citizenships of UK and EU-27 nationals remains unclear, and the statist and individualist conceptions of Union Citizenship produce diametrically opposed consequences. The statist conception implies that Brexit extinguishes the Union Citizenship of UK nationals. But the individualist conception of Union Citizenship implies that the citizenships, and the rights contained therein, will survive the end of UK membership in the EU. This ‘Continuity’ Union Citizenship becomes the salient touchstone of this conceptual shift advocated here; EU (and UK) action to preserve it, either through the Withdrawal Agreement or legislation, is declaratory rather than constitutive. If this is correct, little changes as a consequence of Brexit. The principal argument in support of the received statist conception is that the Treaties connect Union Citizenship with EU membership of the State of nationality. But the article argues that the individualistic idea of Union Citizenship has indeed been institutionalised by the Lisbon Treaty, with the analysis proceeding in four steps. First, Union Citizenship is not just a status but a fundamental right. Any interference with it is thus subject to the principle of proportionality and cannot affect its core. Second, deciding on the acquisition and loss of Union Citizenship is not a right but a competence of the Member States. This competence is not unlimited. Third, Union Citizenship is autonomous from the nationality of a Member State. Third-Country nationals may continue to hold the rights of Union Citizenship provided a sufficiently close link exists with the EU. Fourth and finally, the EU is obligated to ensure legal certainty for citizenships beyond the end of a State’s membership in the EU, and the Lisbon Treaty confers the requisite competence in line with the international law of treaties.

Anti-Zionism, Jus Cogens, and International Law: The case of the Banjul Charter and Arab Charter

ABSTRACTThis article examines the legal and political implications of the anti-Zionism provisions in the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) and 2004 Arab Charter on Human Rights (Arab Charter), considering the International Law Commission’s current work on peremptory norms of general international law (jus cogens). The Banjul Charter and Arab Charter present what appear to be rare test cases of treaties that conflict with a jus cogens norm, which self-determination—in the case of the Banjul Charter and Arab Charter, this would be Zionism, which this article understands as Jewish self-determination—at least arguably is. This article has three parts. First, it sets forth the nature and parameters of jus cogens under international law, paying attention to the operation of these norms under international treaty law. It then examines the anti-Zionism provisions in the Banjul Charter and Arab Charter and explores their drafting history. Finally, on the assumption that self-determination qualifies as a jus cogens norm, this article applies the black letter law of jus cogens to the Banjul Charter and Arab Charter and looks at the political implications of the two treaties’ anti-Zionism provisions, whether or not self-determination qualifies as a jus cogens norm.

Is the Good News About Law Compliance Good News About Norm Compliance? The Case of Racial Equality

AbstractThe most important international human rights norms are legalized or codified in international treaty law. Yet pernicious practices at odds with these norms endure and sometimes even increase after legalization. According to conventional wisdom, this is because agents commit to but do not comply with international law and the underlying norms. I develop a theory of evasion to explain why norm violations persist even when states technically comply with the law. Because legalization transposes social norms into international law imperfectly, it creates gaps between laws and underlying norms. Because of these norm-law gaps, legality and normative appropriateness will diverge. States caught between opposing pressures from pro-violation and pro-compliance groups exploit this gap through what I call evasion—the intentional minimization of normative obligations that technically complies with international law but violates underlying norms. I demonstrate the theory's empirical purchase in the cases of the French expulsion of Roma immigrants and the Czech school segregation of Roma children. Under the cover of technical compliance with the law, these states violated the norm of racial equality. The argument cautions that the good news about law compliance is not necessarily good news about norm compliance, broadens our understanding of norm violators' agency, and has practical implications for human rights advocacy.

The Constitution of the Russian Federation and International Law: A Theoretical Approach to the Concept of "Generally Recognized Principles and Norms of International Law» and jus cogens

The paper contains analysis of a specific concept of generally recognized and norms of international in comparison with the phenomenon designated by the term 'jus cogens' and common to the Western legal doctrine and case law. A special issue in the theoretical analysis thereof relates to a comparative law approach to the results of the past and present stages in examination of the same terms performed by the UN International Law Commission. The examination in question was affected within the framework of codification of the law of international treaties in the 60s of the twentieth century and the current specific work in respect of jus cogens. These two terms currently coexist in the international law doctrine and practice neighboring with others, i.e. the terms that are also included into the range of 'principles:' basic principles, of law, principles of general international law, etc., which requires appropriate allocation of meanings among them.

Some Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law

This article is devoted to current practices concerning the application of general principles of law in the light of their function in the international legal system. As a means of the application and interpretation of both treaty and customary law, general principles of law perform a crucial function in the system of international law, which is understood as set of interrelated rules and principles – norms. The role played by general principles of law in the international legal order has been discussed by academia for years now. Initially they were used to ensure the completeness of the system of international law. However, at the current stage of development of international law, when many of them have been codifed, they are usually invoked by international courts for the interpretation of treaties and customary law and/or the determination of their scope. This means that despite their ongoing codifcation they do not lose their character as general principles and are still applied by international courts in the process of judicial argumentation and the interpretation of other norms to which they are pertinent. References by international courts to general principles of law perform the allimportant function of maintaining the coherence of the international legal order, which is faced with the twin challenges of fragmentation and the proliferation of international courts

Métis-Crown Relations Through an International Treaty Lens

From 16th century, through until the 19th century, European nations signed many treaties with Indigenous peoples based on mutual understandings, grounded in both European and Indigenous legal principles, recognizing Indigenous peoples’ sovereignty and capacity to enter into Treaties. Despite this early international treaty-making context, there is often an assumption that Indigenous peoples lacked the international standing to conclude international treaties with other (European) nations. It is further assumed that Métis people never concluded treaties with the Crown. This article argues that the agreement that led to the passing of the Manitoba Act, 1870 meets the requirements for a valid treaty in international law, based on international law at the time. This article builds off growing literature that recognizes Indigenous-state treaties as international in character. Recognizing the international character of the agreement is critical to re-establishing the nation-to-nation relationship between Canada and Métis peoples.

Transnational Criminal Investigations in Cyberspace: Challenges to National Sovereignty

The internet has become a major place of business for criminals. Due to the properties of cyberspace, crime committed on or by means of the internet is typically transnational in nature. This poses a significant obstacle for law enforcement authorities. As a rule, transnational exercise of enforcement jurisdiction traditionally constitutes a violation of another State’s territorial sovereignty. But do the same rules apply in the ‘global cyberspace?’ This article examines the applicability of the principle of territorial sovereignty in cyberspace. It rejects solutions that treat cyberspace as a common good and argues that transborder online criminal investigations infringe the territorial sovereignty of the State where the accessed data are located. Consequently, the analysis assesses justifications for such infringements on the basis of international treaty law, customary international law, and circumstances precluding wrongfulness. For the most intricate cases of loss of location, the analysis develops a carefully delimited, new solution based on the principle of necessity. The article also sheds light on future perspectives and advocates for a ‘cooperative cyberspace’ of investigators to counterbalance the unfettered global cyberspace of perpetrators.

Debates on Intervention against Religious Persecution in the Polish-Lithuanian Commonwealth: European Reactions to the Tumult of Thorn, 1724–1726

Although the crisis surrounding the execution of Protestants by Catholic authorities in the Polish town of Thorn in 1724 is relatively well known among historians of early modern Europe – as indeed is the susceptibility of the eighteenth-century Polish-Lithuanian Commonwealth to external interference and intervention – there has been no detailed, multi-angle analysis of the European reactions to this instance of alleged religious persecution. By analysing the diplomatic and publicity responses of various European powers, as well as the comments in the contemporary print media, a number of insights will be gained. By focusing on the arguments and language used, the article seeks to discern the normative attitudes of contemporary statesmen towards sovereignty, standards of good governance, ‘enlightened’ state practices, international treaty law, and the grounds and scope for the external protection of foreign subjects’ rights. More broadly, this will enable a deeper understanding of the normative underpinning of the post-Westphalian states system by highlighting the previously underestimated role and capacity of intervention in states’ internal affairs, stemming, at least in part, from a ‘proto-humanitarian’ impulse. By keeping a close watch on the broader context of European international relations, the relative importance of political and geo-strategic interests in such undertakings, and how these interacted with more ideological factors, will also be explored, as will the interrelationships between the public sphere and foreign policy.

Making Interpretation More Explicit: International Law and Pragmatics

Building on earlier research, the present article integrates linguistics and pragmatics into the study of interpretation of treaties in international law. This approach aims to make the reasoning of interpreting agents and their appeals to interpretive canons more explicit and transparent. This is consequently demonstrated with a number of practical examples in which the process of legal interpretation and its accommodation of the mentioned norms of interpretation can be adequately described and modelled. At the same time, it is shown that legal language possesses certain particularities, but nevertheless ultimately follows the basic pragmatic rules of communication. Nonetheless, linguistics and pragmatics can only provide an ultimately descriptive account of interpretation, so that evaluative judgements on the normative questions of how to respect the norms of international law still need to be made and – from a normative perspective – the rules of international law are not replaced or abrogated.