TY - JOUR
AU1 - Pemmaraju, Sreenivasa Rao
AB - 1. Most of us as practitioners of international law tend to ignore and even dismiss theory or the theoretical underpinnings of the discipline. This lack of understanding of the true and intimate relationship between theory and practice results in a situation, aptly described by the German saying, in which “theory is when one knows everything, and nothing happens [while] practice is when everything functions and nobody knows why” (p.5). We owe a debt of gratitude to Professor Emmanuel Roucounas for piecing together the doctrinal and theoretical foundations of international law in his book, A Landscape of Contemporary Theories of International Law. According to him, the current landscape of the theory of public international law “may be envisioned as comprising a rambling choir group of teachers, judges, lawyers, governmental and international agents, as well as philosophers and other thinkers of social sciences” (Preface, p. XVI). “The book aims”, in his own words, “at providing a sample of such a choir and bringing under the realm of some theoretical issues, voices of a number of scholars” keeping “a reasonable balance among harmonies, cacophonies, convergences, disagreements and contradictions”. This magnum opus, covering more than five hundred authors and about one hundred and forty themes, presented in an unusual style and format across forty-two chapters, reveals the wide and extensive experience of Professor Roucounas, acquired during his long and illustrious career as a judge, scholar, teacher, and adviser. With this contribution, he has further established himself as a guide and philosopher of international law, someone who can bring some “harmony” out of the many “cacophonies”. 2. A humble attempt is made below to underline some of the main features of this remarkable and unique contribution. The material thus presented is not intended to be exhaustive, even if it is considered defying the usual format of a book review in the breadth of its coverage. While accepting all blame for this and claiming no credit, this reviewer proposes to discuss some themes within the context of the book, including the relationship between theory and practice, the (“Eurocentric”) nature of the international legal order, and the sources of international law. The reader will note that the page numbers cited in parentheses refer to the pages in the book under review. Reference to the “author” throughout this presentation should be understood to refer to Professor Roucounas, unless the context indicates otherwise. Concept of international law 3. A review of this book must begin with an exploration of various concepts of international law and theory. A useful starting point would be H. L. A. Hart’s concept of law, which is based on “rules of recognition” consisting of primary (positing standards) and secondary rules (of change and adjudication), as well as of law emanating from sources considered “authoritative” and enforced by “centrally organized sanctions”. Hart views international law as essentially “in form though not in all its content, a simple regime of primary or customary law” (p.668). Ronald Dworkin, differing from Hart, proposes “a liberal theory of law based on individual rights” (p.669). Extending this conception of law to the realm of international law, Dworkin advocates that: “States have the general obligation to improve the overall international system, and to accept feasible and shared constraints on their powers”, which could be interpreted by “the UN General Assembly, as well as judicial and other organs” (p.671). According to Joseph Raz, the legal system comprises “state-law” as well as “other forms of law”. Despite several factors, including the growing impact of globalization, the role of the law of international organizations such as the UN Charter, the relationship between treaties and custom, and the role of the WTO dispute settlement in regulating international trade, Raz argues that the importance of State and legal systems based on State sovereignty and “state-law”, even after accounting for questions about their “legitimacy”, continue to hold sway in the legal system. This is because “with all their faults, states and state-law have engendered over their history a strong sense of identity and loyalty among their inhabitants” (p.673). The value of the philosophical conceptions noted above is immense. The law of State responsibility was designed by the International Law Commission, “distinctly influenced” by the works of H.L.A Hart, to deal with only secondary rues, separating the same from primary rules (p.156). It is also clear that international law, as a system of law, emanates from sources recognized as authoritative (primarily, from treaties and custom) and is enforced through a culture of compliance and otherwise by means considered permissible (pp.276-277). Finally, it is a truism to note that the practice of States mainly accounts for the creation of international law, the primary function of which is to regulate their international relations. 4. A fundamental question asked of international law, related to its sources and means of enforcement, which are essentially based on the consent of and collaboration among States, is whether it can be treated as a branch of law. Reflecting a widely shared opinion among scholars and practitioners of international law, Shabtai Rosenne noted that: “[I]nternational law is an independent and self-standing branch of law and of jurisprudence, of legal science and legal philosophy, but it cannot be, it must not be, separated from law as a whole” (p.80). This is so, despite the fact, he added that “the international lawyer cannot throw-off his initial training or cultural upbringing, nor is he or she expected to do so” (p.80). For the author, there is no doubt that international law “is a branch of the legal order and system”, just like law at the domestic level (pp.278-279). The difference between a legal “order” and a “system”, in his view, is that “order means unity and hierarchy, whereas a system is, irrespective of order, the grouping of interrelated elements” (p.12). Legal theory, then (taking a note from Richard Posner) aims at creating “tools essential for understanding and improving the system”, while philosophy of law (or legal philosophy) “is concerned with the analysis of high-level law-related abstractions such as legal positivism, natural law, legal hermeneutics, legal formalism, and legal realism” (p.9). 5. As for theories of international law, which are the main focus of the book, the author finds a variety of them are in circulation, thanks to the vast amounts of legal material produced in the present age of globalization (including resources on the internet and the publication of lectures delivered under numerous academic and professional bodies) (p.75). This leads the author to conclude that “today’s ocean of writings makes it difficult to draw a panorama of theory, and it is even hazardous to present the appurtenance of authors to schools, movements, and trends, in what has been described by Bin Cheng as ‘doctrinal pantheism’” (p.77). Having thus identified his task, Roucounas set out to map some of the most well-known and oft-discussed theories of international law. Theories of international law 6. Perhaps the most systematic exposition in the book is its “tour d’horizon of thirty-two schools, movements and trends that dominate or simply appear in current international legal thinking”. “It offers”, as the author notes, “an illustrative picture of the saga of tools that the choir of international lawyers master or pretend to master”. A few of the theories and schools of thought Roucounas covers are: “liberalism, naturalism, positivism, realism, pragmatism, idealism, rationalism, empiricism and formalism mixed with modern and post-modern approaches, policy-oriented, structuralist, constructivist, critical, Third World, feminist, institutionalist, instrumentalist, regime and other theories”. It also discusses “universalism expressed by cosmopolitan and constitutional visions attenuated by pluralist and relativist trends” (Preface, p. XVII). As important as the content of each theory is the fact that “almost all major theories…interact with each other, either positively or negatively” (p.261). In that sense, not a “single theory lived in solitude”, displaying a “strong presence of relativism”, covering, “in some instances instinctively, a considerably extended spectrum of ideas” (p.261). Accordingly, “most theories adopt unifying objectives and seek to situate states, international organizations and other ‘actors’ within the framework of the international community/society” (p.262). It is pertinent to note that the development of the law concerning peremptory norms or jus cogens (noted in Article 53 of the Vienna Convention on the Law of Treaties) and the erga omnes obligations (noted first by the ICJ in its 1970 Barcelona Traction case judgment (p.273) and later reflected in Article 42 (b) of the Draft Articles on State Responsibility), is premised on the existence of the “international community as a whole”. The author in this context explores vrious views on the notion of the international community and its impact on world public order (pp.267-272). His own view is that the “precise legal parameters of the notion are still under consideration by theory”. The UN appears to him to “be a good candidate” in representing “the international community” though much “depends on the circumstances surrounding each situation” (p.273). Impact of theory on international law 7. The author deals with the impact of theory on international law using several examples: just war (or legitimate use of force) as opposed to unjust war (force otherwise prohibited); sovereign equality of States; what is not expressly prohibited is permitted under international law (the so-called Lotus case dictum), which “still constitutes the flagship for traditional and other positivists and a relic of the past for their opponents” (p.22); pacta sunt servanda, a foundational principle underpinning the sanctity of treaties; the principle of jus cogens (akin to the principle of ordre public); the concept of the common heritage of mankind (the very foundation for the operation of the international seabed regime); and the common but differentiated responsibility espoused by developing and emerging economies in the context of protecting the environment and framing of principles to combat climate change. Regarding these examples, Roucounas notes that theories “have been in the origin of or have contributed to the construction of the generally recognized and still subtly or controversially approached sources of international law, as well as classical principles, rules and regimes” (p.17). The intimate relationship between theory and practice has contributed to the clarification and development of international law. For some authors, like Maarti Koskenniemi, “it is neither useful nor ultimately possible to work with international law in abstraction from descriptive theories about the social life among States and normative views about the principles of justice which should govern international conduct” (pp.7-8). The decisions of international tribunals and of the ICJ illustrate this point, with the author capturing some pertinent examples: SS Lotus case, the Kosovo case, the Barcelona Traction case, the Continental Shelf cases, the Nicaragua case, and the Eastern Greenland case (pp.21-24). Another important feature of international law, the issue of justiciability of the acts of the UN Security Council, has triggered theoretical debates that have intensified since the Lockerbie case. The legal effects of the Security Council’s actions are yet another theme that created “conflict-complex” in courts and scholarly writings alike, as demonstrated by the “diverging judgments of the two European Community (EC) Courts in the Kadi and Al Barakaat and Yusuf cases”, where the degree of autonomy of EC Law was at issue (p. 24). All of this, according to Roucounas, highlights the value of theory in the field of international law, which traditionally was concerned with inter-State relations and States’ interests, rather than with values that shape the system itself. Jean Combacau and Serge Sur, in their treatise on international law, pointed out that it is “during the twentieth century that the ideological component of international law started to increase with the prohibition of the use of force, self-determination, the protection of human rights and humanitarian law, the concepts of the international community as a whole and the ‘common heritage of mankind’” (p.28). Theory and practice of international law 8. Eminent practitioners of international law, such as the former President of the ICJ, Dame Higgins, believed that “theory” was associated more “with an intellectualism that was irrelevant to the problems of the day” (p.12). Sir Ian Brownlie extended this critique, noting “the harm caused to the business of legal investigation by theory” and arguing that “(empirical) analysis of the function of law in the international community is important because it is the theories of law which are one of the principal causes of low morale among students of international law” (p.14). Nevertheless, almost all judges, practitioners, and teachers of international law are guided by their own social, economic or cultural underpinnings and, “notwithstanding the doctrinal detection of lacunas, and contests about the international legal system that arise from international crises”, they “mostly choose theoretical findings to strengthen their argumentation” (p.14). 9. Despite the rather low opinion many practitioners hold about the utility of certain aspects of theory, according to the former President of the ICJ, Sir Robert Jennings, “there is probably no other system of law in which the individual workers and scholars enjoy such telling influence over the shaping of the content of the rules and even of the principles of law”. Judge Jennings observed further that, “international legal scholars have an influence probably unparalleled since the jurisconsults of classical Roman law” (p.15). Oscar Schacter noted this phenomenon when he referred to the influence of the “invisible college” of international law specialists on the development of international law” (ibid.). One example that illustrates the value of the contribution by this “invisible college” of international law specialists was, as noted by Roucounas, the 1984 work of a celebrated scholar of India and a former President of the ICJ, Judge Nagendra Singh, on the theory of responsibility of the flag State. Singh’s work found expression in 2015 in the jurisprudence of the International Tribunal of the Law of the Sea (ITLOS) (pp.18-19). Acknowledging the contribution of the “invisible college”, Brownlie noted other sources analogous to the writings of publicists, which are at least “as authoritative”: “the Draft Articles, Reports and Memoranda adopted by or prepared for the ILC; the 1929–1939 Harvard Research on International Law Drafts; the bases of discussion of The Hague Codification Conference of 1930; and the Reports and Resolutions of the Institut de Droit International and of other expert bodies” (p. 21). Historical evolution and Eurocentrism of international law 10. The impact of history on modern international law is the subject of study of several scholars (fns.102, 103 and 104, p.43). It is often noted (Anghie’s work Imperialism, Sovereignty and the Making of International Law is a prime example) that modern international law is the product of the history and practices of European nations and that Eurocentrism was used mainly as a vehicle to prevent “inter-European conflicts in the acquisition of foreign territories (as was the case with the Berlin Conference, 1884–1885)” (p.46). This is despite the fact that the Asian and African States have also had their role in treaty practice during the pre- and post-colonial periods, and in the development of customary international law governing diplomatic relations, immunity of envoys and conduct of armed conflicts (see generally the works of Alexandrowicz, Chaco, Nagendra Singh, R.P. Anand, and Onuma). The fact remains, however, that colonialism and the structures and decision-making processes of institutions created since the First Hague Conference of 1899, including the League of Nations (1932-39) and the United Nations from 1945 onward, have been organized to serve the political and strategic interests of the European world, the United States and the Allied Powers. Unequal treaties were imposed on Asian and African States in the pre-colonial period, treating them as insufficiently civilized to participate in the process of development of international law on a level equal to the European powers. As James Crawford observed, traditional international law “was undemocratic to the tooth and claw” (p.626). Consequently, “it is not easy to rid modern international law of its retrograde doctrines and practices of the past” (B.S. Chimni, p.46). 11. One cannot easily wish away the persistent influence of “Eurocentrism” in international law and the role of economic and military power in world affairs in effectively denying true sovereign equality, equity, justice and human dignity to poorer and weaker States. Yet it is still important to underscore the effort of the Group of 77 (or broadly nations of the Global South), during the first thirty years of the UN, to universalize and thus enlarge the foundations of international law. They succeeded in leaving their imprint on several areas such as the law of treaties, State succession, the law of the sea, international trade law, and international environmental law. The 1970 UN Declaration on “Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, adopted with the active participation of several leading practitioners of international law from “third world” countries,1 deserves special mention for its support of a new world order based on respect for “the relations among States having different political, economic and social systems”, and sovereign equality. It also affirmed the sanctity of principles of non-use of force and non-intervention. The ICJ, in its judgment in the Nicaragua Case, recognized them as principles of customary international law.2 12. In connection with the above, we may also refer to some of the important concepts that emerged, due to the united efforts of the third world, as part of modern international law. These include jus cogens3; the inherent and permanent sovereignty of States over natural resources; colonization as a crime; the reservation of outer space and the marine spaces beyond the limits of national jurisdiction exclusively for peaceful purposes and the resources of the international seabed area as the common heritage of mankind4; and sustainable development and the protection of environment based on the principle of “the common but differentiated responsibility”.5 The degree to which developing countries have managed to influence codification and progressive development of international law under the auspices of the United Nations must have prompted Arnuf Becker Lorca to note how “semi-peripheral jurists” from Latin America, Asia and Eastern Europe “appropriated” some of the salient principles and rules of international law, with origin in policies and practices of Western European and other States, in favor of the aspirations of their peoples (p.47). 13. The book further explores the question of how universal the field of international law actually is by capturing some dominant themes of international law and State practice from different regions of the world (p.101). As for India, the works of Nagendra Singh and M.K. Nawaz are notable for their systematic exposition of Indian State practice in international law. In this connection, we may also refer to several influential contributions published by the Indian Yearbook of International Law (Madras University) and the works of B.S. Murty on the law governing diplomacy and the regulation of propaganda. In any case, for an evaluation of State practice it is important to examine their sources, that is, the official views expressed; statements made before the UN and other international organizations; treaties concluded, or pleadings submitted before the international tribunals or courts; or claims made as part of peaceful settlements of disputes. 14. It might be useful to close this section of analysis by emphasizing the significance of the cross-fertilization of sources of international law based on sustained interaction among different civilizations and principal legal systems (Chapter 7, Part I). The author refers in this context to the views of some leading British and European scholars and practitioners that the so-called “Eurocentrism” of international law is less real than apparent. Michael Wood noted that instead of focusing on one region and its influence, we should consider the fact that there is only one system of international law with infinite approaches. Wood suggested that “though there can be influences on international law that originated from a geographic region, this is merely their pedigree, and they are part of one and the same international law” (pp.134-135). Coming from the other end of the world, Judge Hanqin Xue from China expressed a similar sentiment when she noted that “today’s international law should not be viewed through a country-specific or country-oriented lens”. According to her, “there are no such things as China’s international law, American international law, or France’s international law” (p.100). Roucounas himself advocates the importance of and the need for “an informal legal dialogue between civilizations” (p.134). Relationship between domestic law and international law 15. On the relationship between domestic law and international law, the author dwells on many aspects, including monism and dualism. On the current complex state of the subject, the observation by Neil Walker appears to summarize five modes of welcoming international law in the domestic legal system: institutional incorporation, system recognition, normative coordination, environmental overlap, and sympathetic consideration (fn.154, p.54). Judge Kirby of Australia examined the role of judges of courts of the Commonwealth countries, since the important 1998 Declaration of Bangalore, in advancing or enhancing the effect of international law on national law through “interpretative incorporation that conceive the national Constitution as a living tree and understand international law rules as special contextual principles” (p.64). 16. However, one is alerted about the tension between international law and domestic law, given the primacy the latter accords to its constitutional law. In this connection, our attention is drawn to the debate among scholars of international law on the effect of the doctrine developed by the German Constitutional Court, the doctrine of “Solange” (so lange). Solange refuses to give effect at the domestic level to obligations imposed on the State under international law, if they are incompatible with constitutional law protections. Some cases which disallowed the implementation of international obligations at the domestic level on this ground were noted (see Sentenza case decided by the Italian Constitutional Court, the judgments in the Medellín case decided by the US Supreme Court, and the ECtHR cases of Kadi and Al Barakaat). One commentator, Peters, who analyzed these cases, concluded that there were significant differences that set apart one decision from another (p.66). One, of course, welcomes the wise saying of Judge Shahabuddin, who noted that “municipal law reasoning, correctly handled, can and does play a part in the thinking out of international law problems” (p.65). 17. The reference to the principle of subsidiarity, more prominent in EU law (the 2012 Brighton Declaration and the case-law of the ECtHR), is brief but refers to several aspects of the law. These include the application of the principle of self-determination outside the context of colonialism; the doctrine of humanitarian intervention; the concept of complementarity that governs the jurisdiction of the International Criminal Court (Article 17 of the ICC Statute); the principle of the “margin of appreciation” in the interpretation of human rights and integrity of persons; protection of the environment; standards of review in international economic law; and the rule of exhaustion of local remedies as a condition precedent for invocation of diplomatic protection. These are all contested or evolving areas of international law (humanitarian intervention, protection of the environment and integrity of persons) and generally shake “the very Western concept of sovereignty” and entail the reconstruction of competences and State jurisdiction (p.62). The “principle overturns the legitimate pyramid of sovereignty, as in cases of failure at the national level it permits the overshadowing of domestic law by putting into action international law and institutions”. Viola adds that subsidiarity is used “in two manifestly contradictory ways: it either restrains the power of the superior authority, or it reaffirms its necessity” (ibid.). The author appears to reconcile the various trends concerning the reception and recognition of principles of international law at the domestic level when he noted that where there is contradiction, the well-established principle applies: “a state cannot invoke its internal law as justification for not complying with its international obligations [inter alia Article 27 of the 1969 Vienna Convention on the Law of Treaties (VCLT)]” (p.57). The role of experts and expertise in international law 18. The role of experts and expertise, or specialized knowledge in the framing of legal principles, is another important aspect increasingly being resorted to in the development and application of international law (p.70). The ILC has resorted to seeking expert advice as and when the Special Rapporteur concerned (for examples, Chusei Yamada on shared underground waters and Shinya Murase on protection of atmosphere) felt it was useful. Judge Vukas notes that with respect to what the law is on a given subject, experts and their advice brought by a party in defense of their position before a tribunal carried limited value (p.69). Arbitral tribunals routinely seek the help and advice of the hydrographers or cartographers as expert members of the tribunal when matters of delimitation of maritime boundaries are at issue. The use of scientific and technical expertise, as opposed to expertise on a particular aspect of international law, thus appears to be gaining ground at the international level. The importance of such expertise or evidence for appreciating and evaluating contested claims in fact-intensive cases with a complex scientific component was stressed by Judges Al-Khasawneh and Simma in their joint dissenting opinion in the Pulp Mills case.6 The use of expert advice on international law in the decision-making of domestic courts, as opposed to international tribunals, seems to have received favorable reception. International human rights law and international humanitarian law 19. International human rights law (IHRL) scholarship from around the world is succinctly synthesized, with an exploration of broad themes including “the fight against poverty, health, development, the right to water, and the rights of future generations” (with reference to the now often-forgotten 1997 Declaration on the Responsibilities of the Present Generations towards Future Generations)” (pp.369-371). In her work in The Oxford Handbook of International Human Rights Law (2013), Dinah Shelton attempted to delineate the stages in which the promotion and protection of human rights have advanced over the years since 1950, noting, among others, the contributions of Sir Hersch Lauterpacht (p.361). The author refers to the perceptive observations of Cassese, who “emphasized that jus cogens is under constant development in the field of human rights” (p.356). Cassesse noted that “national and international bodies” have included “the prohibitions of genocide, slavery, torture, racial discrimination and forcible denial of self-determination as well as the right to life, access to justice, fair trial, habeas corpus, the principle of non-refoulement, the prohibition of collective penalties, and personal criminal responsibility in the matrix of peremptory norms”. As for the implementation of these, Cassese envisioned “a system of inquiry of violations, the enacting of the criminal responsibility of the authors of gross violations, and the involvement of international civil society” (p.357). Importantly, the author argues that the process of enunciation and enforcement of human rights depends on an interdependent relationship between international and domestic law. In this connection, the author noted the influence of human rights on the expanding scope of, and the increasing protection according to it by, international law, a feature gaining increasing attention in recent years (as witnessed in Qatar v. the UAE before the ICJ, dealing with racial discrimination issued under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); and The Gambia v. Myanmar, dealing with the abuse of human rights of Rohingyas). 20. The author engages in a stimulating discussion on international humanitarian law (IHL) (replacing the old reference to the law of war) with a more direct emphasis on the close relationship between IHL and IHRL. This section reviews the doctrine of IHL, beginning with the Martens Clause of 1899, and followed by its development through the adoption of the Rules of The Hague (as part of the First and the Second Hague Peace Conferences), the four 1949 Geneva Conventions and their two 1977 Additional Protocols. Two further “doctrinal” initiatives are noted: the 1995 Rules (the San Remo Rules) applicable in armed conflicts at sea and the 2013 (Harvard) Manual of 175 Rules related to the International Law Applicable to Air and Missile Warfare (p.398). Referring to current IHL, spread out in at least thirty international legally binding instruments, and the reservations and difficulties of the implementation of those treaties, particularly Additional Protocol II (on internal armed conflicts, national liberation movements), the author reminds us that “it was customary law that for long time regulated war in international law” (p.397). From a theoretical standpoint, he refers to four contemporary challenges for the implementation of IHL, as identified by the ICRC: “occupation, privatization of war, security detention and terrorism” (ibid.). 21. The “romantic” narration of the march or evolution of international human rights law (IHRL), according to Susan Marks, needs to be balanced against the critical thinking on the part of some commentators who warn us “about bureaucracy, professionalization and state-centered approaches corroding the actual implementation of human rights” (p.362). Despina Sinou has assessed the doctrinal trends in the field of human rights and expressed the fear that the “golden age” of international human rights is “now over”, citing the “increase in nationalist and populist movements, as well as of authoritarian regimes”, which raises concerns about the enforcement of IHRL (p.362). Even though he admits that the principles and practice of IHL do not always evoke a high sense of optimism, given the fact that armed conflicts are mostly “international” with indirect involvement of international actors, Roucounas rejects the criticism that “theorizing in this field is ‘a rather anti-theoretical, at time even anti-intellectual discipline’”. He posits that “the literature on the laws of war is abundant and overwhelmingly humanistic” (p.395). The survey of literature on IHL is representative of different views and themes, offering the reader some of the best contributions on the subject (pp.395-409). International economic law 22. On the history and concepts of international economic law (IEL), several important contributions reviewed have disclosed the distinct nature of that law despite its close relationship to public international law. The author paid special attention to WTO law, which, following the establishment of WTO and its charter, now governs the bulk of rights and obligations of States in the field of trade and commerce. He notes that “it appears undisputed that WTO law, as IEL more generally, is part and parcel of public international law” (p.418). Donald McRae, however, observes that “international trade law and international law are in fact based on different assumptions, since the international trading régime is founded on the principle of comparative advantage, while international law, by contrast, is founded on the principle of state sovereignty” (p.418). 23. On the other hand, it is emphasized that international law concerning the protection of foreign investment clearly constitutes “a proper subsystem of international law” (ibid.). By general admission, investor-State arbitration is a novel aspect of dispute settlement governed by public international law. While claims in this area owe their source to the rights and obligations of private parties under a contract governing an investment, these are laid eventually at the doorstep of the State of nationality of the recipient of the investment, usually a private “person” or entity. The host State is not privy to the contract itself except insofar as it might have concluded a bilateral treaty with another State, or a multilateral treaty to which both the States are parties, providing for the protection of investments. The system thus “operates on the basis of more than three thousand international investment treaties in force (whether general, such as the 1965 Convention on the Settlement of Investment Dispute between States and Nationals of other States, or particular, such as the 1994 Energy Charter Treaty and the 1994 NAFTA and the myriad of bilateral investment treaties) which provide substantive rights to foreign investors combined with a treaty-based right to resort to arbitration against host States (p.419). Its operation is premised upon the concept of “arbitration-without-privity”, as noted by Jan Paulsson in 1995.7 24. Investor-State arbitration has attracted numerous disputes, forcing mostly developing (third world) States in need of foreign capital infusion to submit themselves to it against their will and consent. These States, for lack of a better choice, compete to attract foreign investments and submit themselves to international arbitration. Such arbitration is admittedly governed by international law and the rules and regulations of the arbitration center providing services as a registry. Some of the arbitral tribunals faced objections to their jurisdiction to entertain claims brought by private investors against the host State. In some other cases, the awards rendered faced challenges.8 Accordingly, with some experience and understanding of the competing priorities and conflicting values inherent in the promotion and protection of foreign investments, some States and scholars have expressed their concerns. They are actively exploring options to better serve the interests of host States in terms of their “regulatory autonomy” and “public interest”9 (p.419). Subjects and users of international law 25. Though international law doctrine predominantly focuses on the role of States in law-making, the practice of international law indicates the significance of the role of other actors also (IOs, NGOs and, sometimes, groups of individuals) (p.527-528). In this connection, Alvarez “envisions a better theory based on certain facts, namely the changing primacy of the nation state, the place of general principles of law no more a mythical source of international obligation, and forms of law-making reflecting ‘community interests’” (p.531). The role of participants other than States, including, in a limited way, international organizations in the world social process, is often a subject of doctrinal debate and even controversy. Given this fact, the author proposed, for the purpose of his analysis, to choose the term “users” of international law. According to him, this notion “purports to encapsulate not only the smaller group of the producers of international law, but also all those to whom international law is applicable”. “Thus,” he added, “the notion of ‘users’ includes states, international organizations, other entities, individuals and groups of persons as well as misusers of the law; in sum, all those physical and legal persons who fall under different conditions and regimes within the ambit of international law” (p.430). He further stated: “That said, it must be clarified that the terms ‘users, subjects, non-state actors or participants’ are employed interchangeably throughout this book” (p.433). 26. According to the author, there is a need to study and examine various concepts of international law from the perspective of functional efficacy and efficiency, if only to “fully grasp … the extent to which persons not qualified as ‘subjects’ of international law are actually addressees of international law” (p.433). In this regard, it is rightly pointed out that the scope and application of international law are constantly evolving and expanding. The obligations of States under international treaties to provide protection of human rights involving immigration, refugees, and grievances of individuals have brought individuals as claimants in their own right under international law, asserting rights they enjoy under these treaties. It is also noted that technological changes have brought a growing number of users, for example, of the law of the sea, and “actors, agents, operators, producers, intermediates, consumers” using international economic and financial regulations. Furthermore, concerns about the “protection in the chaotic cyberspace, if existent at all”, are increasingly realized as a matter “only loosely” of domestic law (p.432). 27. The concept of the State, and various themes associated with it, is discussed in any international law casebook or textbook. Yet Roucounas’s analysis, which combines theory and practice and a focus on outstanding problems, provides a unique overview of the following themes: creation and recognition, sovereignty, international legal personality, equality, territory, State (jurisdictional) immunity and diplomatic immunities, responsibility, liability, self-determination, secession, and succession. For example, the author refers to the debate on State immunity in respect of claims of damages for alleged torture committed in a foreign State. Theories also focus on the limitations of State immunity in case of conflict with jus cogens, a debate that began with the controversial decision of the Grand Chamber of the ECtHR (decided by a 9 to 8 vote) in the Al- Adsani case in 2001 (pp.455-456). The 2012 Judgment of the ICJ in the Jurisdictional Immunities of the State case also dealt with it but did not settle the matters involved (p.456). It may also be noted in this regard that the ILC is considering another aspect of the matter under the agenda item “Immunity of State officials from foreign criminal jurisdiction”.10 28. On the topic of State responsibility, the author reviewed “mainly post-ARSIWA … account of doctrinal approaches to various aspects of state responsibility”. In this connection, he dealt with “doctrinal reactions to issues such as “the nature and content of state responsibility, primary and secondary rules of state responsibility, the notions of damage/injury (dommage) and legal injuries, attribution, the distinction between delicts and crimes, and the issue of countermeasures” (p.461). As pointed out by the author; several of these issues have raised lively debates in theory and practice: the distinction between primary and secondary rules and abandonment of the regime of “crime”; principles governing attribution; particularly in respect of the degree of control over an armed group required for the attribution of its conduct to a State; enforcement of international law through unilateral or coordinated sanctions or countermeasures not involving the use of force; and the duty of States other than the injured State to ensure compliance with obligations erga omnes. 29. Concerning responsibility and liability, one positive feature that emanated from both is the articulation of the duty of diligence as a standard to assess “fault” (wrongful acts include fault, but fault may or may not involve wrongful acts). As the author noted: “The resort to due diligence as a general standard of conduct was articulated in the Corfu Channel case, in the form of ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’”. Since then, this concept has been adopted mutatis mutandis in different fields of international law (international environmental law, international investment law, law of the sea, international human rights law), “while it is often taken into account in assessing international responsibility” (p.472). 30. On self-determination and its relationship with secession and the foundation of IHL, the author notes that there are two or three dimensions to the concept (internal, international, and human rights). In this connection, he observes that “the case studies show not only the relationship between international and domestic law, but also that sometimes secession is provided for by domestic law (this was the case with the 1977 Constitution of the Republics of the Soviet Union, but not for the autonomous regions of these Republics)”. This, according to him, illustrates how “self-determination and secession lie at the intersection of national and international law”, with contributors differing in their approaches regarding key issues at stake (p.478). One aspect of interpretation or application of the right of self-determination the author does not probe is “the precise ramifications in other contexts”, which need to be worked out.11 In light of the 1970 UN Declaration of Principles of International Law concerning Friendly Relations (adopted without a vote), the limits or limitations of the scope and application of the right of self-determination where the rights of minorities are secured under the constitutional law of a democratic government raises its own issues, specifically, whether and when the right gives rise to an automatic right of secession. 31. The discussion on the concept of the “failed State” is brief (pp.485-488) compared to other subjects that figured in this section of the book. The author highlights this phenomenon without either dismissing it because it did not affect its status as a State under international law, or focusing on its problems and possible solutions at a more substantive level. This brief account does plead, however, for “more effective measures” (p.486). For example, it notes the Brahimi Report on United Nations Peace Operations, adopted by the Security Council unanimously on 13 November 2000 (p.487), and some valuable suggestions made by Abdulqawi Yusuf (advocating the designation of “illegal seizure of power” as “an imprescriptible crime”, “the adoption of schemes of decentralization” and “respecting ethnic, religious and cultural specificities”) (p.488). 32. Besides States, international organizations (IOs) are another set of users of international law, and the law and responsibility relating to them (modeled after the 2001 ILC draft articles on State responsibility of wrongful act) receive thorough attention. The discussion takes us through some theoretical expositions on the creation and functioning of international organizations, which, since the days of the League of Nations, have attempted to promote and consolidate a “legal community of mankind” (as suggested by Walter Schiffer in 1954). This idea was taken further by several eminent scholars to the point of noting that the UN Charter is virtually the “Constitution of the World”. Since the creation of the United Nations, international law has witnessed substantial growth, thanks to its “implied powers”, the recognition of its legal personality, the roles of specialized intergovernmental organizations (according to the “rule of specialty”, their roles are limited by the functions assigned to them), as noted by the ICJ in its 1996 advisory opinion in the Legality of Nuclear Weapons,12 and the role of civil society or non-governmental organizations in promoting good governance. 33. Given the inability of the UN and other IOs to act independently of the financial and political support of its membership, and the role of the veto making the UN collective security system almost dysfunctional, one commentator suggested that it is an illusion to believe “that the great number of IOs has the resources to act without the participation of the states actually taking the decisions”, apart from “the illusion that IOs create in international politics” “some form of global governance” (p.497). In contrast, according to another commentator, “the growing network of international institutions active in the economic, social and political fields” has created the “conditions for globalized capitalism”. According to this view, this “trend undermines democracy and legitimizes hegemony” (p.498). Mohammed Bedjaoui observed that the role of the UN and other IOs in promoting a new world order is now threatened beyond repair given the fact that “[G]reat Powers use aggression and political destabilization to achieve their policies, and traditional international law is unable to suppress situations openly challenging the sovereignty and independence of states” (p.495). He “appeals for a normative change within IOs along with a democratization of international relations” (p.496). 34. Roucounas also analyzes the role of several IOs, including the Security Council, with respect to the topic of the use of force in the context of a non-functioning collective security system (while “the mechanisms of the UN feign to sleep” (p.372)): the definition of an armed attack, the right of self-defense (including in case of attacks by non-State actors), humanitarian intervention or the right to protect (R2P), the discretionary powers of the Security Council, the use of force under the authorization of the Security Council, regional interventions (“provided for by Article 4 (h) of the African Union’s constitutive document”) (p.381), the role of the Coalition of the Willing (COW), UN peace-keeping operations, and the non-forcible measures (fact-finding, peaceful settlement, observation, sanctions, international criminal tribunals) decided by the Security Council. The Chatham House principles on the relationship between the prohibition of the use of force and the right of self-defense, the principles enunciated by the Institut de Droit International on self-defense, the regulation of internal armed conflicts, the authorization of the use of force by the Security Council, and humanitarian intervention (and its lack of legitimacy in the absence of endorsement by the UN) all provide some references on the current doctrinal thinking about the legal limits on the use of force within the framework of the UN collective security system (pp. 372-394). 35. On the responsibility of member States of IOs toward third parties, the author brings forth various contributions. In this regard, the book examines the case of the conflict involving Iraq under Saddam Hussein, and the responsibility of member States of IOs, including issues arising out of shared responsibility (pp.499-510). The author draws our attention to a “fine analysis regarding the accountability of IOs” to be found in the Final Report (2004) of the Berlin Conference of the International Law Association (authored by Karel Wellens and Malcom Shaw) (p.507). Separately, on the responsibility of member States of the International Organizations toward third parties, the author refers to the work of the Institut de Droit International, which was based on the Reports of Dame Rosalyn Higgins and its 1995 Resolution. Commenting on the work of the Institut, Brownlie took the view that what “counts is a study of the object and purpose of the organization, its compatibility with principles of general international law, and the relevance of state responsibility” (p.504). 36. On the legislative role of the Security Council, the discussion points to the conclusion (which, in the opinion of this reviewer, is well-taken) that “the SC enjoys a general legislative competence based on Article 25 of the Charter”, but the same is “limited by the jurisdiction of the United Nations at large, as well as by the attribution and division of competences within the Organization”. In other words, “only resolutions that are intra vires the UN Charter acquire binding force” (p.533). One important caveat stressed in the literature is that while resolutions of the Security Council “are not tantamount to treaties and thus not subjected exclusively to VCLT rules”, certain presumptions may apply in their interpretation. In this regard, mention may be made, for example, to the presumption that “the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights”. The ICJ in the Kosovo Advisory Opinion and the ECtHR in the Al-Jedda and Al-Dulimi cases upheld this conclusion (p.534). 37. This section also covers ideas on law-making by international judicial bodies (within the limits of judicial caution) and informal law-making, which have become the new norm at a time when “formal international law is going through a period of stagnation in terms of quantity and quality” (p.535). This is an aspect that is also referred to as part of the expanding role of “soft law”, discussed below and elsewhere in the book. The author there deals with the “infinite variety” of ways in which the law-making process occurs (pp.536-542). This highlights the importance of sources of international law to which we will now turn. Sources of international law 38. Referring to the role of custom as a source of international law, the author confirms its continued importance. While much is written about this source, the divergence of opinion dominates the interpretation and application of customary international law. The ILC completed its work on codification and progressive development of international law when it adopted on May 25, 2018, a set of sixteen draft conclusions on the identification of customary international law, with commentaries.13 The main takeaway from a thought-provoking discussion of the two main elements—the objective element, (long and consistent or uniform) practice of States (usus), and the subjective element, “acceptance as law” or opino juris—is better captured by the ILC in its commentary: “The identification of customary international law is a matter on which there is a wealth of material, including case law and scholarly writings.14 The draft conclusions reflect the approach adopted by States, as well as by international courts and organizations and most authors. Recognizing that the process for the identification of customary international law is not always susceptible to exact formulations, the draft conclusions aim to offer clear guidance without being overly prescriptive”.15 In this regard, ILC draft conclusion 3 aptly notes that, in “assessing evidence” for each of the two constituent elements, “regard must be had to the overall context, the nature of the rule and the particular circumstances in which the evidence in question is to be found”.16 39. On a related issue, Talmon takes the view that the methodology adopted by the ICJ on the confirmation of the customary nature of a principle under its consideration is “neither clear …nor consistent”. According to him, “when judicial ascertainment of a rule is impossible via induction or deduction, the ICJ avoids pronouncing a non-liquet and prefers the most common methodology of judicial assertion” (p.552). As part of the review of this section on customary international law, two other observations are particularly noteworthy. For David Bederman, “[t]he crucial challenge is to retain custom’s dynamism and legitimacy”. He further notes that, “Legitimacy is decisive, as custom may sometimes suffer from a democratic deficit, in the sense that powerful nations are more likely to exercise substantial influence over its formation and revision”. He is, however, wary of “misguided attempts to increase custom’s dynamism and relevance, for example in the promotion of human rights” as that might “fatally undermine its legitimacy”. Accordingly, he feels that it “is unwise to abandon the strong positivist intellectual roots of custom in favour of a new naturalism”, and counsels that “attempts to expand the scope of the jus cogens and erga omnes doctrines must be restrained” (p.548-549). Another commentator, Roozbeh, focuses on “the debate over whether consistent state practice and opinio juris are the only building blocks of custom”, and concludes that it “is over, because they no longer are”. In his view, the new debate should focus on the implications of the work and decisions of the international criminal tribunals “not only for the international system, but for the domestic legal system as well”. In this context the author draws our attention to “the stand of the international criminal tribunals regarding the determination of (effective or overall) control in armed conflicts, immunities of heads of state and government officials, and objective mens rea standards in command responsibility” (p.549). Finally, Roucounas turns his attention to the rule of “persistent objector to the general custom”. Based on the review of authoritative opinions, he concludes that even if it is excluded in relation to a principle of a peremptory character, it “is per se a contradiction in terms, and should not be understood (not to say, rendered) as a ‘joker card’ in the hands of States, capable of absolving them from general customary law obligations widely accepted and well-tested in interstate relations” (p.556). 40. The discussion on customary international law in the view of this reviewer confirms the following points: i) while identification of customary law is primarily based on long and consistent practice that is accepted by States, not as a matter of choice but on the ground that they feel obligated to do so, the element of opinio juris can be said to have manifested itself; ii) the sense of compulsion to follow a certain practice is also aided by the general recognition that the basic, underlying principle serves the common interests of the international community; iii) an endorsement by judicial bodies of authority, like the ICJ, to the effect that the norm constitutes customary international law seals the matter; and iv) finally, the principle of persistent objector becomes inoperative or invalid once a principle of customary international law solidifies or emerges. 41. The discussion on treaties confirms their pre-eminent status as a source of international law, particularly given the central role codification conventions occupy in this regard. The “monographs by Lord McNair, Sir Ian Sinclair, and Paul Reuter on the law of treaties remain classic to this day”. Equally outstanding is the work of Rosenne, who “analysed the drafting history of the 1969, 1983 and 1986 Vienna Conventions on the Law of Treaties, the principle of good faith, the constituent instruments of IOs, the contribution of the UN on the development of the law of treaties and the settlement of treaty disputes” (p.558). The author covers various aspects of international treaty law and development, including those that have seen much practice around them, such as the rules on interpretation (Articles 31–32) and breach of treaties (Article 60), and the rebus sic stantibus clause (Article 62) of the VCLT. Other aspects that have witnessed less practice involving them, but that Roucounas analyzes, are successive treaties (Article 30), separability of treaty provisions (Article 44), amendments (Articles 39–41), error, fraud, and corruption (Articles 48–51), reduction of the parties (Article 55), suspension (Article 58), and severance of relations (Article 62). 42. Referring to the VCLT, Anthony Aust noted that “there is no case in which the ICJ has found that the Convention does not reflect customary international law” (p.562). Baxter spoke of the interrelationship of treaty and custom. Boyle analyzed, besides the role of general principles in the interpretation or application of treaties, the emergence of custom from practice, based on multilateral treaties and adopted by consensus. The result is the transformation of what some might regard initially as soft law into hard law. Accordingly, Boyle concludes that treaties are a significant source for the development of international law as well (ibid.). 43. The author discusses the role and significance of “general principles of law” as a source of international law (Article 38(1)(c) of the Statute of the ICJ) (pp.568-574), even though these “general principles” are not often expressly referred to when dealing with rights and obligations under international law. He points out that “the functions of the general principles are less contested than their definition and status as a source”, noting that “they have a gap-filling function and can prevent non-liquet, and an interpretative and conflict resolution function”. The author fully concurs with the view that the expression, “civilized nations”, in Article 38(1)(c) of the ICJ Statute, is obsolete, reminding us of Sir Humphrey Waldock’s observation that “the emphasis on civilized nations now seems both otiose and unpalatable” (p.574). After all, we, the people of the United Nations, belong to one world, one civilization, a world that is integrated and interdependent, irrespective of the conflicts of interests and continued unrest that plague our everyday life at the national and international levels. 44. As noted above, soft law has come to play a significant role as a source of international law in the contemporary world. Soft law, in general, refers to the quasi-legislative function of the resolutions of the UN General Assembly and the codes of conduct prepared by international organizations and non-governmental bodies, including reports of specialized and expert bodies. It is understood that soft law i) is not based on the consent of States, in the strict sense of the term, or the endorsement from State practice that constitutes opinion juris; ii) can be adopted through the operation of consensus, reciprocal or concurrent, and common practice; iii) becomes validated as authoritative prescriptions, operational guidelines or substantive principles; and iv) is invoked, in the common interest, by decision-makers. 45. Chinkin has noted the value of codes of conduct, for example, imposed “on multinational corporations and on the transfer of technology”. In this connection, she underlines the “effect of soft law on domestic legal systems and the fact that international soft law principles are eminently suitable for the resolution of disputes through negotiation and mediation” (p.578). Goldmann has surveyed how “legal positivism, legal realism, critical legal studies and global administrative law approach the phenomenon of international soft law”. He has scrutinized the extent to which the concept of law endorsed by the above-mentioned schools of thought can tackle “the spread of soft law as a means of governance, as a functional equivalent of international treaties, and from the perspective of its legitimacy” (p.579). Brunno Simma offers examples of soft law where it “is used for international human rights standard setting, either as a final or as intermediate reflection of international consensus” (ibid.). 46. According to Laurence Boisson de Chazournes, international standards (or international technical norms) “respond to social needs in a world where degrees of normativity vary and the criterion of the obligatory nature of rules becomes less determined” (p.581). Judge Dillard notes in this regard that “standards provide the means whereby juridical law accommodates itself to change” (p.580). Rudiger Wolfrum has provided a useful survey on international standards and their impact on the policies and principles of the European Union (democracy, and respect for fundamental human rights and principles) and on the work of international organizations such as the ILO, FAO, WHO, WTO, the World Bank, IMO, ICAO, and IAEA. He stresses that the “legitimacy of mechanisms establishing standards depends upon the balanced composition of the relevant bodies” (p.580). 47. Having dealt with the concepts of soft law and international standards as auxiliary sources of international law, the author briefly explores the notion of “transnational law” preferred by some scholars while dealing with principles others commonly consider part of “public” or “private” international law. Judge Jessup was among the first to refer to “transnational law”. More recently, Harold Hongju Koh gives a lot of currency to the concept by developing the methodological tool of transnational legal process to analyze the age of globalization. Koh aims to understand “how in theory and practice public and private actors interact in a variety of public domestic and international fora to make, interpret, internalize, and enforce the rules of transnational law” (p.582). Globalization is defined as “mobility across frontiers” of goods, capital, information, communications, services and people (ibid.). Anthony Aust articulates, on the other hand, the widely shared view that the term “transnational” seems to have been “invented to describe the study of any aspect of law that concerns more than one state in conflict of laws, comparative law, supranational law and public international law” (p.583). But, as he cautions, there is no evidence for us to “believe that we are living in a world where all laws are rapidly converging” to form a single system of law transcending public international law on the one hand and private international law (conflict of laws) on the other. Relationship between and hierarchy of norms 48. Chapter 36 focuses on the relationship between norms. It deals with the hierarchy of norms, jus cogens (the peremptory norm), and erga omnes obligations. The short note on the hierarchy of norms settles the academic discussion, which sometimes gives the impression that the problem involved is highly abstract and that something fundamental is at stake beyond what is obvious under Article 103 of the UN Charter. As for States, obligations they contracted as members of the UN prevail over those they might contract under any other international agreements. In practice, we rarely come to witness any problem requiring the application of this principle. Even if a problem arose, it is better handled as one of scope and application of the competing (and not as clashing) obligations, as Crawford suggested (p.586). Sienho Yee, in his exposition on the sources of international law under Article 38(1) of the ICJ Statute, clarifies the matter by stating that except for the judicial decisions and “teachings of the highly qualified publicists” (noted as subsidiary sources in Article 38(1)(d)), there is no rigid hierarchy among different sources of international law (p.585). On the other hand, he stresses the overriding effect of the principle of jus cogens, or the “fundamental norm” principle. Max Sorensen illuminates the matter when he notes that Article 38 sets out an “order of priority” instead of a hierarchy among different sources. In practice, therefore, les generalis yields to lex specialis, and “the judge gives deference to the source whose rules are easier to prove” (p.586). 49. The discussion on the theory or philosophy underpinning the concept of jus cogens—and its value as a norm bearing fundamental value for the international community “as a whole” and the non-derogability of such norms—follows the familiar pattern of thought on the subject. The impression one gets from the discussion is that, in the words of Sir Ian Brownlie, “more authority exists for the category of jus cogens than exists for its particular content”.17 Karl Zemanek appears to echo this impression when he notes that “most arguments take place at a rather abstract level” (p.591). It is generally true that, “Article 53 does not explain the creation, but only the existence of jus cogens”. Obligations of a peremptory nature derive, as commonly viewed, from the usual process of creation of ordinary customary law. It may be recalled that this very fact caused considerable concern in some quarters, with Prosper Weil complaining about the “relative normativity in international law” (p.235-236). Roucounas suggests that while many problems remain unresolved, “a judicial power of identification is emerging and there is a tendency towards developing a hierarchy of norms, which may lead to the constitutionalization, criminalization and moralization of international law” (p.588). 50. Since 2015 the ILC has been working on the “identification and general consequences of peremptory norms of general international law (jus cogens)”. At the end of its 2019 Session, the Commission adopted in its first reading a draft set of 23 conclusions and an Annex indicating “a non-exhaustive list of norms that the International Law Commission has previously referred to as having that status”.18 The draft conclusions emphasize the difference between customary international law and peremptory norms, with the stipulation that both would emerge from the same process that is long, consistent and followed by opinion juris. The evidence concerning the identification of these norms is also the same. However, the difference lies in the fact that the peremptory norms are hierarchically superior to norms of international law in general and are non-derogable. The work of the ILC focused, as noted by Roucounas, “primarily on state practice and judicial decisions as well as on scholarly writings” (p.596). 51. The principle of erga omnes is best explained by the work of Maurizio Ragazzi. The scholar highlights the four examples identified by the ICJ in the Barcelona Traction case, i.e. “aggression, genocide, slavery and racial discrimination”, and reaches the conclusion that obligations erga omnes contain five common elements: “a) they are related to narrowly defined obligations, b) they are all prohibitions, c) they constitute obligations in the strict and narrow sense, d) they derive from general international law rules which are part of jus cogens, and finally, e) they are all instrumental in promoting contemporary political objectives and underlying moral values” (p.592). The author adds that “the ICJ in the 2012 Belgium/Senegal case confirmed that states have the legal interest in invoking breaches of obligations erga omnes, even though not being directly injured by them” (ibid.). In this connection, the play on the phrase “legal interest” is worthy of note. This phrase subscribes to the view that whereas States, other than the directly injured State or States, might have a legal interest or entitlement in securing the implementation of obligations erga omnes, they are not required to act; and even when they choose to act, their right to act is limited (cf. Article 48(2) of the 2001 ILC draft articles on State responsibility). 52. Giorgio Gaja, as Rapporteur of the Institut de Droit International and in his 2013 Hague Lectures, sheds considerable light on the scope and limits of the concept erga omnes. The 2005 Resolution of the IDI added obligations “relating to the environment of common spaces” to those already identified by the ICJ, noted above. In cases of grave breaches, all concerned states are obligated not to recognize the situation created and are entitled to take “non-forcible countermeasures” (p.594). A State or any other entity is entitled to seek protection of a general interest, even if it is not directly injured by the infringement of that interest (for example, in cases concerning the prohibition of torture). Gaja notes that a “general interest need not be a universal one and may exist only for a subset of states”. He also examined the status of the international community as a holder of general interests, as well as the role of States, the UN, and other actors in protecting the said interests (ibid.). 53. Picone critically assesses the work of the ILC on State responsibility regarding the questions of obligations erga omnes and rules jus cogens and seeks to demonstrate the operational difficulties arising from the application of the two concepts (p.595). Vladimir Djuro Degan defines the scope and patterns of obligations erga omnes within the framework of sources of international law and examined these obligations in the realm of international criminal law. He notes that though the ICTY “was endowed with erga omnes jurisdiction rationae personae”, it did not elect to invoke this jurisdiction (ibid.). 54. Towards the end of Chapter 36, the author deals with “commitments” (a concept larger in scope than obligations) that States make, which are described either as “successive”, “parallel” or even “contradictory,” apart from those that are “hierarchical.” Article 30 of the VCLT “concerns cases where the application of one treaty provision makes impossible the simultaneous execution of a provision contained in another treaty in force and postulates the principle of “preeminence of the lex posterior and the lex specialis” (p.597). Noting the usefulness of legally non-binding commitments, the author asserts that “a mature community does not need hard law for every social activity” (p.597). 55. On the issue of the binding nature of norms contained in legally non-binding international instruments, the author offers some valuable insights on the concept he terms “transtextuality”. Transtextuality refers to textual transcendence that “puts [the text] in manifest or secret relation to other texts”. According to him, there are good reasons why a provision in a legally non-binding instrument becomes “legally binding”. First, because “they are identical to existing legal obligations of the states concerned”. Second, the legal value of a non-binding commitment needs to be evaluated in light of the circumstances under which it was adopted, apart from the process and methods adopted for its approval. For example, commitments adopted by consensus with fewer interpretative statements, declarations, or reservations appear to gain higher legal value and tend to attract wider acceptance in practice. Third, where the wording of the non-binding commitment differs from the agreed language of the binding act, “priority” is accorded to the latter. Fourth, “transtextuality contributes to the assessment of the fate of norms legally binding regionally but aspiring to universality”. Fifth, “transtextuality helps to achieve harmonization of behaviors of diverging addressees of an international text irrespective of who is bound by other international instruments of superior or equal value” (598-599). 56. When it comes to the protection of human rights, the author believes that the maxims lex specialis and lex posterior “appear to be insufficient in solving complex problems of international and national protection of human rights”. In this connection, he suggests that “in such situations, irrespective of references to lex posterior or lex specialis, and in the presence of two or more provisions equally applicable, the interpreter should rely on the provision most favorable to the protected person”. In support of this proposition, the author refers to the practice of ECtHR under Article 53, and Article 29(b) of the European Convention on Human Rights, which “explicitly lay out a rule to the effect of applying any domestic law provision more favorable to the protection of the individual” (p.599). Interpretation of treaties 57. The author begins his discussion of the interpretation of treaties with an analysis of the role and function of treaties. The author notes at the outset that the law of treaties has a fundamental role in ensuring that the law is made to serve “social needs” so that it could remain a “living thing” (p.600-601). Treaty interpretation in practice is based, since 1969, on the two articles, Articles 31-32, of the VCLT. These articles reflect, grounded in the work of the ILC, “the comparatively few general principles which appear to constitute general rules for the interpretation of treaties”.19 International law regulates the rights and obligations of States based on the consent given by States in terms of a treaty or through custom. Accordingly, both the ILC and the Institut de Droit International came to the same conclusion that the fundamental purpose of treaty interpretation is to identify the intention of the parties as expressed in the text, “as the most recent common intention of the parties”.20 The jurisprudence of the ICJ “supports the textual approach”.21 58. Article 31 of the VCLT is the basic guide for treaty interpretation. In identifying the intention of the parties, a decision-maker, person or entity is required to interpret the treaty in “good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context in the light of its object and purpose”. Article 31(2) and (3) provide further guidance in identifying the true intention of the parties. For this purpose, it allows recourse to i) the preamble and annexes; ii) any other agreement concluded among all the parties at the time of the conclusion of the treaty; iii) any instrument that was made by one or more parties in connection with the conclusion of the treaty and accepted by all the other parties as an instrument related to the treaty; iv) subsequent agreements; v) subsequent practice in the application of treaties, reflecting the agreement among parties regarding its interpretation; and vi) any other relevant rules of international law applicable in the relation between the parties. Furthermore, a special meaning attributed to a term is allowed only if it is established that the parties have so intended. 59. Subsidiary means of interpretation noted in Article 32 would become relevant only when an exercise in accordance with Article 31 leaves the meaning of the terms of the treaty “ambiguous or obscure”, or leads to a result that is manifestly absurd or unreasonable. It is generally agreed that Articles 31 and 32 of the VCLT “marked a decisive step in treaty (and non-treaty) interpretation” (p.600). Anthony Aust noted that the ICJ and other international courts and tribunals, as well as the WTO, consider that these provisions reflect “customary international law” (p.602). It is self-evident, however, that the interpretation of a treaty can give rise to differences in opinion or disputes between or among parties to the treaty. In resolving the problems, emphasis is sometimes placed on one element over another. 60. Works of such authorities as Sir Ian Sinclair, Paul Reuter, and Kamil Yasseen, and McDougal have clarified the contours of the law governing treaty interpretation. On issues concerning interpretation, different schools of thought exist. Prominent among these schools are those that favor the text, that is, the plain and ordinary meaning of the text, those that instead emphasize the context surrounding the conclusion of the treaty to identify the intention of the parties, and those that consider the object and purpose of the treaty as crucial in this regard. Commentators have also noted the importance of the changing nature of the “purpose” over time and the need for the evolutive or dynamic interpretation of the objectives of the treaty in question, particularly in the case of treaties on human rights. It is suggested that the “dynamic interpretation also stems from the autonomy and the doctrine of the margin of appreciation” (p.606). Regarding the interpretation or application of treaties by different judicial bodies, it is suggested that the WTO “dispute settlement system is unusual but not necessarily unique”. This is due to, among other factors, the adoption of the principle of “reverse consensus”, which usually prevents “the political control” by the majority from blocking the rulings of the panel and Appellate Body in charge of settlement of disputes (p.607). Anthony Aust considers that Articles 31–32 of the VCLT, well-drafted by the ILC, have enabled the ICJ and other tribunals to treat them as reflecting customary international law (p.602). Joost Pauwelyn and Manfred Elsig note that, in respect of treaty interpretation, the practice of various tribunals indicates the employment of about five different types of techniques: “The dominant hermeneutic, that is text. Party intent, or underlying objective. Timing: original or evolutionary interpretation; activism. Work-to-rule or gap-filling approach. Case-by-case analysis or rule of precedent. And linkage: self-contained or systemic interpretation” (p.611). 61. The review of scholarship about interpretation reveals several different theories or concepts used in approaching the subject. Georges Abi-Saab analyzes interpretation as knowledge (or process of comprehension), as willingness (or process of decision), and as exercise of authority (or source of rights and duties) (p.611). Others deal with the fragmentation in interpretation and the role of uncertainty in better understanding the theory of legal norms. For Koskenniemi, the international legal arguments arising from the “indeterminacy of international law” that pervades its entire spectrum “cannot be resolved by law alone”. Instead, problems in this regard require “political choices” for their solution. For this reason, he advocates that “the profession turns from determinative rules to the search of ‘equitable’ solutions” (p.612). Conclusion 62. Having examined the relationship between theory and practice, the author, toward the end of his work, concludes that the international legal system faces ethical and moral problems similar to those that perennially beset the domestic legal order. Even if there are fundamental differences between the two orders, the author believes there is much for policy makers to learn from the domestic experience in fashioning solutions for problems at the international level (p.682). 63. To conclude, some broad points may be noted for further reflection: According to political scientists, international law is but “a tool” (p.683) to achieve peace and justice; it is certainly not a system or a foundation for the organization and conduct of international relations in a diversified and divided world. International law practitioners and specialists, on the other hand, take the latter view as the hallmark of their work. The various theoretical expositions reviewed in the book either have succeeded one another in time and practice (for example, naturalist and positivists) in explaining the formation and role of international law as a system governing the relations, values or interests of States, or have been a product of different times and contexts of inter-State relations. Some theories are also borne out of a clash of classes (capitalist v. socialist) or political ideology (democracy v. dictatorship), or simply of varying visions of the world social process involved (historical, sociological, realist). The discussion about “Eurocentrism” can be viewed as part of the historical school, as a variation of the school looking for utopia, or as part of a broader view of world order in terms of the “geology” of international law (entailing stratification and accretion of rules and institutions), resulting in the “end of geography” (where the diminishing role of geography requires new international normativity) (p.13). The broad takeaway from the tour de force of the landscape of theories is that States of all denominations or persuasions, irrespective of their policy preferences, invoke international law in support of their preferred positions. The UN and the world order it represented, arguably, prevented a third world war, even if it has not succeeded, according to some, in upholding justice and equity across and within States. Settlement of disputes by peaceful means based on international law has become the order of the day not only in resolving disputes relating to commerce, trade and investments but also certain outstanding political disputes, not amenable otherwise to be resoloved through diplomatic means or by negotiations. The 1945 UN Charter, the 1982 UN Convention of the Law of the Sea, thousands of international treaties, customary international law, and soft law in its “infinite variety of ways” (declarations, resolutions, codes of conduct, and international standards) are now regulating political, economic, financial, and environmental issues. Even so, climate change, terrorism, growing economic inequality and poverty and now even the COVID-19 pandemic have become concerns greater in scope and magnitude than our ability to grasp and grapple with them, given the fact that the world is divided and fragmented, with constant tension between the ruling class and the rest. Against the above background, the book has brought together various theories, themes, and principal exponents elucidating their significance, role and contribution to the landscape of contemporary theories of international law. Students and specialists of international law would benefit, in sharpening their own perspectives on international law, from the wealth of material that the author is able to synthesize, if only one reads the book with the same open mind that characterized the author’s remarkable presentation. Footnotes 1 These countries include Algeria, Argentina, Burma, Cameroon, Chile, Ghana, Guatemala, India, Kenya, Mexico, Madagascar, Nigeria, Syria, the United Arab Republic, Venezuela, and Yugoslavia. 2 See Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. ICJ Reports 1986, p. 14, para.264, p.133. 3 See V. Nageswara Rao, Jus Cogens and the Vienna Convention on the Law of Treaties, 3 Indian JIL 362, 385 (1974). 4 P. Sreenivasa Rao, Public Order of the Ocean Resources: A Critique of the Contemporary Law of the Sea (MIT Press, 1975). 5 Lavanya Rajamani, Differential Treatment in International Environmental Law (OUP 2006). 6 See Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, pp.108-120. See also Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, p. 226; and Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, ICJ Reports 2015, p. 665. 7 Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995). 8 See Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 227, Award of 18 July 2014, under review before the Dutch courts. 9 For a review of some of these issues, focusing on the BITs concluded by India, see Prabhash Ranjan, India and Bilateral Investment Treaties: Refusal, Acceptance and Backlash (OUP, 2019). 10 See for the Eighth report on immunity of State officials from foreign criminal jurisdiction, by Concepción Escobar Hernández, Special Rapporteur, UN ILC doc. No. A/CN.4/739, 28 Feb. 2020. 11 See Brownlie, Principles of Public International Law (6th edn., OUP, 2003), p.555 12 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66, para.25, pp.78-79. 13 UN doc. A/73/10, Ch.5, pp.117-156. 14 Original fn.666 of the ILC: “The present commentary does not contain references to scholarly writings in the field, though they may be useful (and were referred to extensively in the Special Rapporteur’s reports). For a bibliography, including sections that correspond to issues covered by individual draft conclusions, as well as sections addressing customary international law in various fields, see annex II to the fifth report (A/CN.4/717/Add.1)”. 15 ILC commentaries, supra note 14, para.4, p.123. 16 Ibid., para.6. 17 Brownlie, supra note 12, p.490. 18 The Report of the ILC to the UN General Assembly, UN Doc.A/74/10, Ch.V, pp.141-208. 19 Brownlie, supra note 12, p.602. 20 Ibid. 21 Ibid., citing Fitzmaurice. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Emmanuel Roucounas, A Landscape of Contemporary Theories of International Law
JF - Chinese Journal of International Law
DO - 10.1093/chinesejil/jmab010
DA - 2021-07-26
UR - https://www.deepdyve.com/lp/oxford-university-press/emmanuel-roucounas-a-landscape-of-contemporary-theories-of-3DKBQHW0br
SP - 173
EP - 200
VL - 20
IS - 1
DP - DeepDyve
ER -