Cynical International Law?: Abuse And Circumvention In Public International And European Law [296, 1st Edition] 3662621274, 9783662621271, 9783662621288

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Cynical International Law?: Abuse And Circumvention In Public International And European Law [296, 1st Edition]
 3662621274, 9783662621271, 9783662621288

Table of contents :
Foreword......Page 6
Acknowledgements......Page 8
Contents......Page 10
Contributors......Page 13
Abbreviations......Page 15
How (Not) to Be Cynical in International Law......Page 17
1 Cynicism as a Concept......Page 18
2 Cynicism in International Law......Page 22
References......Page 26
Part I: Cynical Foundations of International Law......Page 28
1 Introduction......Page 29
2.1 Power and International Law: The International Relations Perspective......Page 32
2.2 Power and International Law: The International Law Perspective......Page 35
3 The (Relative) Autonomy of International Law......Page 39
4 Conclusion......Page 46
References......Page 47
1 Introduction......Page 51
2 The Possibility of Change......Page 53
3.1 Cynicism and Critique Are Not Productive as Such......Page 54
3.3 Cynicism and Critique Without Alternatives? The Inevitability Narrative......Page 57
4.1 Implications of a Legalistic Worldview......Page 60
4.2 Can Legalism Only Treat Symptoms?......Page 64
5 An Alternative Programme......Page 65
References......Page 68
1 Introduction......Page 72
2 What Cynicism Is Not or Should Not Be......Page 75
3 What Cynicism Has Been......Page 80
3.1 Ancient Cynicism......Page 81
3.2 Modern Cynicism......Page 82
3.3 Cynicism After the Frankfurt School......Page 84
4 Cynicism in International Law?......Page 86
References......Page 90
Part II: Cynical Actors in International Law......Page 92
The International Law Commission as a Club of Cynics? Originalism and Legalism in the Commission´s Contemporary Work......Page 93
1 Introduction......Page 94
2 The International Law Commission......Page 95
3 Legalism......Page 96
3.1 Philosophical Legalism......Page 97
3.2 Ideological Legalism......Page 98
3.3 Legalism and International Law......Page 99
4 Originalism......Page 100
5 Legalism and Originalism in the Work of the Commission......Page 102
5.1 Codification and Progressive Development......Page 103
5.2 Peremptory Norms of General International Law (Jus Cogens)......Page 105
5.3 Immunity of State Officials from Foreign Criminal Jurisdiction......Page 107
5.4 Protection of the Atmosphere......Page 109
6 `What Kind of Character Will That Commission Have?´......Page 110
References......Page 111
The Added Value of the International Law Commission and Its Future Role in the Progressive Development and Codification of Int.........Page 114
1 The International Law Commission as a Club of Cynics?......Page 115
2 The Mandate of Progressive Development and Codification of International Law......Page 116
3 The Added Value of the International Law Commission and Its Future Role......Page 118
1 Introduction......Page 122
2 Constitutionalism and Judicialisation in the Contemporary Cosmopolitan Imagination......Page 124
3.1 Us Against Them: Cosmopolitanism vs. Nationalism......Page 131
3.2.1 Genocide Denial at the ECtHR......Page 133
3.2.2 Abortion in Colombia......Page 134
3.2.3 Civil Society Interventions on the Right to Life......Page 135
3.2.4 The New Trump Commission on Unalienable Rights......Page 136
4 Concluding Remarks: Fox Hunters and International Law......Page 137
References......Page 138
1 Introduction: Cosmopolitan Activism and Judicial Cynicism......Page 145
2 Cosmopolitans and Judicialisation in the 1990s......Page 146
3 The Examples of Backlash......Page 149
4 Conclusion: Judicial Power and Democracy......Page 150
References......Page 151
1 Unfolding the Problem: An Introduction......Page 152
2.1 Customary International Law: Matters of Sovereignty and History......Page 155
2.2 United Nations Convention on the Law of the Sea: Matters of Maritime Zones and the Legal Status of Maritime Features......Page 157
3.1 Lessons from History: Legal Warfare as Part of Chinas Three Warfares Doctrine......Page 160
3.2 The South China Sea Arbitration: Legal Warfare as Lawfare?......Page 162
4 Synthesis: How China´s Lawfare Blurred the Lines between the United Nations Convention on the Law of the Seas and the Coloni.........Page 165
5 Closing Thoughts: Cynicism and Lawfare......Page 167
References......Page 168
1 Introduction......Page 172
2 The Inherent Limits of the United Nations Convention on the Law of the Sea......Page 174
3 The Genesis of the United Nations Convention on the Law of the Sea: Expressions of Post-Colonial Hegemony?......Page 176
4 Consent as the Basis of Modern Law of the Sea......Page 178
5 Different Interpretations, Abuse of Law and `Lawfare´......Page 179
6 Concluding Remarks......Page 181
References......Page 182
Part III: Cynicism in European Law and Sub-Fields of Public International Law......Page 183
1 Introduction......Page 184
2 Strategic Preliminary References......Page 186
3 The Conflict with the Spirit of the Preliminary Ruling Procedure......Page 188
4 Empirical Case Study: The Netherlands......Page 191
4.1 Strategic Preliminary References in Practice......Page 193
4.2 Motives Behind Strategic Preliminary References......Page 195
5 The Cynicism in Strategic Preliminary References......Page 198
References......Page 200
In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism......Page 202
1 Setting the Stage: An Introduction to Cynicism in the Area of Economic and Social Rights......Page 203
2 What Lies Beneath: A Cynical Gaze upon Objections to Recognition and Implementation of Economic and Social Rights in the Ear.........Page 206
3 Preaching Water and Drinking Wine: The Cynical Use of International and National (Constitutional) Law Norms to Justify State.........Page 210
3.1 Reading Between the Lines: Cynicism in the Wording of the ICESCR Itself?......Page 211
3.2 Reclaiming the National Back from the International: Constitutional Supremacy at the Cost of Economic and Social Rights?......Page 216
4 When More Means Less: The Increased Justiciability of Economic and Social Rights as a Sign of Less Cynicism......Page 217
References......Page 220
1 Introduction......Page 222
2 Cynicism as a Negative, Ridiculing and Destructive Mindset......Page 223
3.1 The Obligations of States and the Wording of the International Covenant on Economic, Social and Cultural Rights......Page 224
3.2 Justiciability of Economic and Social Rights and the Separation of Powers Doctrine......Page 226
3.3 A Cynical Treaty? Limited Commitment but Commitment Nevertheless......Page 228
4.1 The Principle of Good Faith......Page 230
4.2 Legal Vagueness and Academic and (Quasi-)Judicial Clarification of Disputed Terms and Concepts......Page 232
4.2.1 Justiciability of Economic and Social Rights and the Counter-Majoritarian Difficulty......Page 233
Indicators and Benchmarks: `Progressive Realization´, Maximum Available Resources´, and `Minimum Core Obligations´......Page 235
Public Budget Analysis: `Maximum Available Resources´......Page 236
A Very Short Normative Critique of Economic and Political Science Approaches to Clarify Legal Norms......Page 237
References......Page 238
All Is Fair in Law and War? Legal Cynicism in the Israeli-Palestinian Conflict......Page 242
1 Introduction......Page 243
2 International Law, Legal Cynicism, and the Israeli-Palestinian Conflict......Page 244
3.1 Competing Narratives......Page 247
3.2 Domestic Fact-Finding Efforts......Page 248
3.3 International Fact-Finding Efforts......Page 249
3.4 The Israeli Response......Page 251
3.5 The Centrality of International Law and the War Crimes Label in the Controversy About the Israeli Actions......Page 252
4.1 The Framing Effects of the War Crimes Terminology......Page 254
4.2 The Experimental Design......Page 255
4.3.1 War Crimes Framing Triggers Backlash and Denial......Page 256
4.3.2 War Crimes Framing Triggers Anger; Does Not Influence Guilt or Empathy......Page 257
5 Discussion......Page 259
References......Page 262
1 A Fragmented Concept of Cynicism......Page 267
2.1 Cynicism as Post-Idealism......Page 268
2.2 Cynicism as the Gap Between Expectations and Reality......Page 269
2.3 The Idea of Compromise......Page 270
3 Manifestations of International Criminal Cynicism......Page 271
3.1 Dismissive Cynicism......Page 272
3.2 Abusive Cynicism......Page 273
3.3 Institutional Cynicism......Page 276
3.4 Discursive Cynicism......Page 278
4 The Chances of Embracing Cynicism......Page 279
4.1 Exposure and Disarmament......Page 280
4.2 Authority and Solidarity......Page 281
4.3 Demystification and Coming of Age......Page 283
References......Page 284
Part IV: Cynicism and Abuse of Rights......Page 287
1 Introduction......Page 288
2.1 The Rigidity of Roman Law......Page 290
2.2 Aequitas and Bona Fides......Page 292
2.3 A Prohibition of the Abuse of Right?......Page 294
3 The Prohibition of Abuse of Right in International Law......Page 296
3.1 The Basis of Abuse of Right in International Law......Page 297
3.2 Can the Prohibition of Abuse of Right Mask Cynicism?......Page 300
References......Page 302
1 Reconstruction of the Main Argument......Page 305
2 The Roman Law Analogy: A Need to Overcome Rigid Formalism?......Page 307
3 Some Concluding Observations......Page 309
References......Page 311
1 Introduction......Page 312
2 Corporate Nationality and the Practice of Nationality Planning......Page 313
3 The Notion of `Cynicism´ and Its Relevance for Nationality Planning......Page 316
4.1 Overview of `Abuse of Process´ in Investment Arbitration......Page 318
4.2 Criteria in Applying `Abuse of Process´ to Nationality Planning......Page 321
5 Conclusion......Page 326
References......Page 327
1 Introduction......Page 329
1.1 Background and Definitions......Page 331
1.2 Colliding Interests and Problems......Page 333
2.1 General Legal Principle......Page 334
2.2.2 Justification for an Encroachment......Page 335
2.3.1 Unwritten Protection Against Abuse......Page 337
2.3.2 General Anti-Abuse Rules......Page 338
Autonomous Interpretation......Page 339
Article 6 Anti-Tax-Avoidance-Directive......Page 340
Halifax Meets Cadbury: Eqiom......Page 341
The Abuse Concept Post Eqiom......Page 343
3 Conclusion and Outlook......Page 344
References......Page 345
Part V: Concluding Observations......Page 347
Cynicism as an Analytical Lense for International Law? Concluding Observations......Page 348
1.1 An Elusive Notion......Page 349
1.2 An Added Value?......Page 350
1.3 A Legitimacy Claim......Page 351
1.4 An Empty Signifier......Page 352
2 Cynical International Law?......Page 353
3 Cynical Uses of International Law?......Page 356
4 The Relevance of a Political Emotion......Page 357
References......Page 360
Beiträge zum ausländischen öffentlichen Recht und Völkerrecht......Page 363
Index......Page 367

Citation preview

Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296

Björnstjern Baade · Dana Burchardt Prisca Feihle · Alicia Köppen Linus Mührel · Lena Riemer Raphael Schäfer (eds.)

Cynical International Law?

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Beiträge zum ausländischen öffentlichen Recht und Völkerrecht Veröffentlichungen des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht

Begründet von Viktor Bruns

Herausgegeben von Armin von Bogdandy  Anne Peters

Band 296

Björnstjern Baade • Dana Burchardt • Prisca Feihle • Alicia Köppen • Linus Mührel • Lena Riemer • Raphael Schäfer Editors

Cynical International Law? Abuse and Circumvention in Public International and European Law

ISSN 0172-4770 ISSN 2197-7135 (electronic) Beiträge zum ausländischen öffentlichen Recht und Völkerrecht ISBN 978-3-662-62127-1 ISBN 978-3-662-62128-8 (eBook) https://doi.org/10.1007/978-3-662-62128-8 © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Foreword

On the eve of the G20 summit of 2019, the Russian President Vladimir Putin said that liberalism is obsolete.1 This verdict seems to comprise the entire international legal order which is, after all, based on principles of liberalism in a traditional European sense: a presumption of liberty (in international law the Lotus principle) that stands in a productive tension with the rule of law, and the protection of human rights and fundamental freedoms. Putin’s remark is cynical; and his and others’ cynicism about international law flows from disappointment. It flows from resentment against ‘Western’ interference in other regions, from the perception of being left behind and lack of prospects for a decent life in the Global South, and from the inhabitants’ of rich industrial states fear of losing privileges and wealth. Resentment and disappointment have triggered an outright backlash against international law. However, not all that is discussed under that heading is unlawful. It is of course perfectly legal not to accede to a treaty or to denounce it in observation of the prescribed formalities and timelines. But such exercises of state powers recognised or created by international law must happen in good faith—the opposite of cynicism. Pace Putin, I submit that far from being superfluous or outdated, the liberal principles in international law need to be strengthened and related to individuals as the primary units of analysis, for example by creating more points of access to courts (international and domestic) which could monitor compliance with the international rules, much better enforcement of human rights, and strengthened accountability of international organisations. In short, liberalism is not out—it is quite to the contrary needed more than ever.

1 Barber, L., Foy, H., Barker, A. (2019). Vladimir Putin says liberalism has ‘become obsolete’. Financial Times, 28 June 2019. Retrieved 30 May 2020, from https://www.ft.com/content/ 670039ec-98f3-11e9-9573-ee5cbb98ed36.

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Foreword

However, while international legal liberalism is necessary, it is not enough. The ‘groundswell of discontent’ with globalisation, as the President of the European Central Bank Christine Lagarde put it,2 the insight that unleashing the market forces on a global scale has not created trickle-down welfare evenly, but has actively hurt large groups of people, polluted the environment, and is ruthlessly and irreversibly destroying entire ecosystems and extinguishing species on a weekly basis—all this is fuelling a strong and justified demand for a more social and a greener international law. This quest overlaps with the demand to de-Europeanise international law and to ‘provincialize Europe’.3 But this should not lead to giving up achievements such as concern for the human being in interdependence with other humans and the natural environment. Obviously, international law’s universality needs to be strengthened. With this I do not mean a hegemonic and totalising claim which only feigns the European states’ particular economic, military, and political interests as being the global public interest, but a bottom-up universalisation, flowing from attentiveness to the differing needs of people in the various regions of the world, developed in fair and inclusive procedures. The conference that led to this book took place in one of the wealthiest and bestfunctioning states on the globe. Refraining from cynical uses of international law in this part of the world would first require giving up double standards. Western states must practice what they preach. It is cynical for a state to condemn violations of international humanitarian law, for example in Eastern Ukraine, when one continues to facilitate targeted drone strikes, and it is cynical to refuse the intake of climate refugees after one has contributed to the most part of global warming oneself. For all what international law is worth, when good faith in making and applying the law is lacking, everything will be lost. On behalf of the Deutsche Gesellschaft für Internationales Recht, I congratulate the Working Group of Young Scholars in Public International Law associated with the DGIR for putting together this timely conference and book. And of course, I hope that many of you will continue to accompany the evolution of international law in a spirit of constructive criticism throughout your further professional life. Deutsche Gesellschaft für Internationales Recht Würzburg, Germany

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Anne Peters

Lagarde, C. (2016). Making globalisation work for all. Sylvia Ostry Lecture, Toronto, 13 September 2016. 3 Chakrabarty, D. (2000). Provincializing Europe: Postcolonial Thought and Historical Difference. Princeton University Press, Princeton.

Acknowledgements

On 6 and 7 September 2019, the Working Group of Young Scholars in Public International Law (Arbeitskreis junger Völkerrechtswissenschaftler*innen) and the German Society of International Law (Deutsche Gesellschaft für Internationales Recht) organised a conference on ‘Cynical International Law? – Abuse and Circumvention in Public International and European Law’ that was held at Freie Universität Berlin. The German Society of International Law, known by its German acronym as DGIR, is devoted to the promotion of public international law, private international law and other fields of transnational law.4 It comprises established experts in these fields. The Working Group of Young Scholars in Public International Law, or AjV, is an informal network of younger scholars in the fields of law, political science and international relations who share an interest in questions of international law.5 The conference and this volume continue the successful tradition of joint AjV-DGIR conferences.6 In the tradition of its predecessors, this AjV-DGIR conference aimed for an exchange between younger and more established academics and practitioners. In five panels, younger scholars presented their contributions which were then commented upon by a group of renowned scholars and practitioners. The exchanges and discussions were intense and fruitful. Many distinguished scholars kindly agreed to comment on the younger scholars’ papers and presentations.

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http://www.dgfir.de/society/. Accessed 30 April 2020. The organisational team of the conference and the editors of this volume, accordingly, are composed of a group of seven doctoral and post-doctoral scholars in the field of public international law from Freie Universität Berlin, Humboldt-Universität zu Berlin, and the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. 6 2012 in Düsseldorf: Aust, H., et al. (2012). Demokratie, Wandel, kollektive Sicherheit – Das Völkerrecht und der Umbruch in der arabischen Welt. Heidelberg Journal of International Law 72, 443–445; 2014 in Göttingen: Baade, B., et al. (Eds.) (2016). Verhältnismäßigkeit im Völkerrecht. Mohr Siebeck, Tübingen; 2017 in Bochum: Wuschka, S., et al. (Eds.) (2019). Zeit und Internationales Recht: Fortschritt – Wandel – Kontinuität. Mohr Siebeck, Tübingen. 5

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Acknowledgements

We are more than grateful for the participation of Professors Andreas von Arnauld (Christian-Albrechts-Universität zu Kiel), Helmut Aust (Freie Universität Berlin), Sigrid Boysen (Helmut-Schmidt-Universität Hamburg), Christian Calliess (Freie Universität Berlin), Patrícia Galvão Teles (Universidade Autónoma de Lisboa), Martti Koskenniemi (Helsingin yliopisto), Heike Krieger (Freie Universität Berlin), Nele Matz-Lück (Christian-Albrechts-Universität zu Kiel), Franz Mayer (Universität Bielefeld), Campbell McLachlan (Victoria University of Wellington), Janne Nijman (University of Amsterdam), Andreas Paulus (Georg-AugustUniversität Göttingen), Marco Sassóli (Université de Genève), Gerry Simpson (London School of Economics and Political Science) and Dominik Steiger (Technische Universität Dresden). We would like to express our sincere gratitude to those who made this conference possible by their support, financial and otherwise: the German Society of International Law, the German Research Foundation, the publishers Mohr Siebeck, Duncker & Humblot and C.F. Müller, as well as the law firm Dentons. We would like to thank the Völkerrechtsblog (www.voelkerrechtsblog.org), which accompanied the conference online—with a symposium and a livestream of the keynote speech.7 For accepting this volume into the Contributions on Comparative Public Law and International Law, we are greatly indebted to Professors Armin von Bogdandy and Anne Peters. Finally, we would like to thank Freie Universität Berlin, its Department of Law and the university administration, for their generous financial and organisational support. We were honoured that the Vice President of Freie Universität, Professor Klaus Hoffmann-Holland, gave us an inspiring welcome at the conference.

The Keynote Speech by Professor Simpson on ‘how to be cynical: some suggestions’, as well as the introduction by Professor Hoffmann-Holland, are available at https://medien.cedis.fu-berlin.de/ cedis_medien/projekte/rewiss/2019/voelkerrecht/cynical_international_law.mp4. 7

Contents

How (Not) to Be Cynical in International Law . . . . . . . . . . . . . . . . . . . . Björnstjern Baade, Dana Burchardt, Prisca Feihle, Alicia Köppen, Linus Mührel, Lena Riemer, and Raphael Schäfer Part I

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Cynical Foundations of International Law

Cynicism and the Autonomy of International Law . . . . . . . . . . . . . . . . . Theresa Reinold

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Beyond Cynicism and Critique: International Law and the Possibility of Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gabriel M. Lentner

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Cynicism as a Modus of Political Agency: Can It Speak to International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hengameh Saberi

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Part II

Cynical Actors in International Law

The International Law Commission as a Club of Cynics? Originalism and Legalism in the Commission’s Contemporary Work . . . . . . . . . . . . Konstantin Kleine

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The Added Value of the International Law Commission and Its Future Role in the Progressive Development and Codification of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Patrícia Galvão Teles From Speaking Truth to Power to Speaking Power’s Truth: Transnational Judicial Activism in an Increasingly Illiberal World . . . . 111 Daniel Quiroga-Villamarín

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Contents

From Judicialisation to Politicisation? A Response to Daniel Quiroga-Villamarín by an Academic Turned Practitioner . . . . . . . . . . . 135 Andreas Paulus Oceans of Cynicism? Norm-Genesis, Lawfare and the South China Sea Arbitration Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Christian Pogies Peace Through Law? The Role of the Law of the Sea Convention Put into Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Nele Matz-Lück Part III

Cynicism in European Law and Sub-Fields of Public International Law

Assessing the Strategic Use of the EU Preliminary Ruling Procedure by National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Jesse Claassen In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism . . . . . . . . 195 Caroline Omari Lichuma In International Law We Shall Trust: (Even in) The Case of Economic and Social Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Dominik Steiger All Is Fair in Law and War? Legal Cynicism in the Israeli-Palestinian Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Shiri Krebs Cynicism? Yes, Please! Embracing Cynicism at the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 Elisabeth Baier Part IV

Cynicism and Abuse of Rights

Abuse of Right in International Law: A Roman Law Analogy . . . . . . . . 283 Andrea Faraci and Luigi Lonardo Abuse of Rights: From Roman Law to International Law? Comments on the Contribution by Andrea Faraci and Luigi Lonardo . . . . . . . . . . . 301 Helmut Philipp Aust Cynicism and Nationality Planning in International Investment Law . . . 309 Philipp Janig (New) Ways of Combating Abuse and Circumvention of European Law on the Example of Tax Evasion and Tax Avoidance . . . . . . . . . . . . . . . . 327 Helene Hayden

Contents

Part V

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Concluding Observations

Cynicism as an Analytical Lense for International Law? Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 Heike Krieger Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367

Contributors

Helmut Philipp Aust Freie Universität Berlin, Berlin, Germany Björnstjern Baade Freie Universität Berlin, Berlin, Germany Elisabeth Baier Danckert, Bärlein, Sättele, Berlin, Germany Dana Burchardt Freie Universität Berlin, Berlin, Germany Jesse Claassen Radboud University, Nijmegen, The Netherlands Andrea Faraci University of Bologna, Bologna, Italy Prisca Feihle Freie Universität Berlin, Berlin, Germany Helene Hayden Austrian Federal Ministry of Constitutional Affairs, Reforms, Deregulation and Justice, Vienna, Austria Philipp Janig Universität der Bundeswehr München, Neubiberg, Germany Konstantin Kleine Graduate Institute of International and Development Studies (IHEID), Geneva, Switzerland Alicia Köppen Humboldt-Universität zu Berlin, Berlin, Germany Shiri Krebs Deakin University School of Law, Melbourne, VIC, Australia Heike Krieger Freie Universität Berlin, Berlin, Germany Gabriel Lentner Danube University Krems, Krems an der Donau, Austria Stanford University, Stanford, CA, USA Caroline Omari Lichuma Georg-August-Universität Göttingen, Göttingen, Germany Luigi Lonardo King’s College London, London, UK Nele Matz-Lück Christian-Albrechts-Universität zu Kiel, Kiel, Germany xiii

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Contributors

Linus Mührel Technische Universität Dresden, Dresden, Germany Andreas Paulus Georg-August-Universität Göttingen, Göttingen, Germany Christian Pogies Goethe-Universität Frankfurt, Frankfurt, Germany Max-Planck-Institute for European Legal History, Frankfurt, Germany Daniel Quiroga-Villamarín Graduate Institute of International and Development Studies (IHEID), Geneva, Switzerland Theresa Reinold Universität Duisburg-Essen, Duisburg, Germany Lena Riemer Freie Universität Berlin, Berlin, Germany Hengameh Saberi Osgoode Hall Law School, York University, Toronto, ON, Canada Raphael Schäfer Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany Dominik Steiger Technische Universität Dresden, Dresden, Germany Patrícia Galvão Teles Autonomous University of Lisbon, Lisbon, Portugal

Abbreviations

BIT BRICS CUP ECJ ECtHR EU HCJ ICC ICCPR ICESCR ICSID ICSID Convention IDF ILC NATO NGO OECD OUP PCA PCIJ Rome Statute TFEU TWAIL UK UN UN Charter UNCESCR

Bilateral Investment Treaty Brazil, Russia, India, China and South Africa Cambridge University Press European Court of Justice European Court of Human Rights European Union High Court of Justice International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Centre for Settlement of Investment Disputes Convention on the Settlement of Investment Disputes between States and Nationals of Other States Israel Defense Forces International Law Commission North Atlantic Treaty Organization Non-governmental organisation Organisation for Economic Co-operation and Development Oxford University Press Permanent Court of Arbitration Permanent Court of International Justice Rome Statute of the International Criminal Court Treaty on the Functioning of the European Union Third World Approaches to International Law United Kingdom United Nations Charter of the United Nations United Nations Committee on Economic, Social and Cultural Rights xv

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UNCLOS UNHCR UNCITRAL UNTS USA VCLT

Abbreviations

UN Convention on the Law of the Sea United Nations Human Rights Council United Nations Commission on International Trade Law United Nations Treaty Series United States of America Vienna Convention on the Law of Treaties

How (Not) to Be Cynical in International Law Björnstjern Baade, Dana Burchardt, Prisca Feihle, Alicia Köppen, Linus Mührel, Lena Riemer, and Raphael Schäfer

‘Don’t talk like that, Dill,’ said Aunt Alexandra. ‘It’s not becoming to a child. It’s – cynical.’ ‘It ain’t cynical, Miss Alexandra. Tellin’ the truth’s not cynical, is it?’‘The way you tell it, it is.’ Harper Lee, To Kill a Mockingbird

Abstract This chapter introduces the concept of cynicism in international law. It argues that looking at international law through the prism of ‘cynicism’ can contribute to the discussion about a ‘crisis’ of, or ‘backlash’ against, international law. The chapter develops a concept of cynicism in international law from the varying understandings among philosophers and legal scholars. It then provides a brief overview of the contributions to this book.

The first step in addressing a problem is acknowledging that there is one. The role of international law in the world and its impact on the lives of people around the globe is no longer as largely seen to be a positive one as it might have been in the

B. Baade · D. Burchardt · P. Feihle · L. Riemer Freie Universität Berlin, Berlin, Germany A. Köppen Humboldt-Universität zu Berlin, Berlin, Germany L. Mührel (*) Freie Universität Berlin, Berlin, Germany Technische Universität Dresden, Dresden, Germany R. Schäfer Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_1

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1990s.1 More recently, international lawyers have begun to address this change by discussing a ‘crisis’ of, or ‘backlash’ against, international law.2 It is our understanding that looking at international law through the prism of ‘cynicism’ can make a meaningful contribution to this discussion by looking beyond examples of overt disregard for international law or international cooperation, for example non-compliance or withdrawals from treaties.3 The concept can serve to analyse and criticise structural features and specific uses of international law that seem detrimental to international law in a more subtle way.

1 Cynicism as a Concept To engage with ‘cynicism’ in international law, it is important to gain an understanding of the concept’s meaning. The ancient Greeks’ philosophical understanding of cynicism was linked to a form of independent thinking, a ‘plebeian antithesis against idealism’ that was used as a basis for the critique of power and the powerful.4 The life of Diogenes, the ascetic philosopher who is said to have defied not only most social conventions but even Alexander the Great by asking him to ‘stand a little out of his sun’, is emblematic for this understanding.5 In this ancient meaning, cynicism may offer a perspective of distance to the object of study of international law and serve as a basis for—constructive—critique. This might be more necessary than ever to meet today’s challenges. Peter Sloterdijk in his Critique of Cynical Reason suggested a shift in the meaning of cynicism: from the ancient Greek understanding to a modern form of cynicism. Modern cynicism, Sloterdijk argues, ‘switched sides’: it now also serves the powerful as an antithesis to their own purported idealism, which is thus revealed as

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For this change in perception, cf. Krieger and Nolte (2019). See inter alia Nijman and Werner (2018), Madsen et al. (2018). Note that before the present discussions of ‘crisis’ and ‘backlash’, legal scholars pointed to some of the issues that are now raised by certain actors of the current ‘backlash’, see, e.g. Anghie (2005) and Koskenniemi (1989). 3 See for these e.g. Breuer (2019). 4 Sloterdijk (1983), p. 222. 5 Plutarch, Lives, vol. VII: Demosthenes and Cicero, Alexander and Caesar (Harvard University Press: Cambridge/London 1919), Alexander XIV, p. 259: ‘[M]any statesmen and philosophers came to him [Alexander] with their congratulations, and he expected that Diogenes . . . would do likewise. But since that philosopher took not the slightest notice of Alexander, and continued to enjoy his leisure in the suburb Craneion, Alexander went in person to see him; and he found him lying in the sun. Diogenes raised himself up a little when he saw so many persons coming towards him, and fixed his eyes upon Alexander. And when that monarch addressed him with greetings, and asked if he wanted anything, “Yes,” said Diogenes, “stand a little out of my sun.” It is said that Alexander was so struck by this, and admired so much the haughtiness and grandeur of the man who had nothing but scorn for him, that he said to his followers, who were laughing and jesting about the philosopher as they went away, “But verily, if I were not Alexander, I would be Diogenes.”’ 2

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‘ideology and as masquerade’.6 In that sense, cynicism nowadays refers not to a bold critique of power but to a strategy of furthering one’s interests by pragmatic or, if you will, tactical behaviour. Such behaviour refuses to publicly acknowledge the disregard for ethical idealism and the law, which it in fact practices. In its modern form and applied to international law, cynicism denotes uses and abuses of international law that are meant to further the one-sided interests of certain actors in unspoken disregard of the legal structure that it applies. Such actors try to profit from the legitimacy of lawful conduct, while arguably acting against the spirit of the law. Countering such actions, for example by prohibiting an abuse of rights, faces the difficulty that delimiting use from abuse can be a very delicate affair.7 An action cannot be considered abusive merely because the legal arguments are in part used to achieve political aims. One would not say that a claimant in a civil trial is acting cynically or in bad faith because she is using the law and legal procedures to further her self-interest.8 It is a normative decision to consider an action as abusive or non-abusive.9 In the decentralised legal order of international law, an impartial arbiter like a court will not always be at hand to make such normative decisions in an authoritative manner. However, although these decisions might be hard to make for certain cases in international legal practice, there are other cases which are quite clear-cut. Russia’s argument that it was protecting Russian nationals in the annexation of Crimea is one of the most recent and blatant examples of cynical legal argumentation by a state.10 However, states might not be the only ones that act in a cynical way. Among the group of other potentially cynical actors, international lawyers have received particular attention in the discussion about cynicism in international law. As Martti Koskenniemi noted, international lawyers that profess progressive and internationalist beliefs must take seriously the charge, brought against them in the context of the current backlash against the international legal order, that they as well might be acting cynically, or might at least be perceived to be doing so. He depicts international lawyers’ dialectic between commitment—a ‘sentimental attachment to the field’s constitutive rhetoric and traditions’—and cynicism—a ‘pervasive and professionally engrained doubt about the profession’s marginality, or even the identity of one’s profession, the suspicion of it being “just politics” after all’.11 International lawyers’ commitment to the pursuit of global equality and justice might result in cynical resignation when the gap between their ambition and reality becomes all too

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Sloterdijk (1983), p. 222. See the contributions of Helene Hayden and Philip Janig in this volume, delineating abuse in European tax law and international investment law, respectively. Cf. on the problem posed by populist governments in this regard: Krieger (2019), pp. 976, 994. 8 See the contribution of Shiri Krebs in this volume. 9 See the contribution of Andrea Faraci and Luigi Lonardo in this volume. 10 See e.g. Marxsen (2014), pp. 372–374. 11 Koskenniemi (2017). 7

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apparent.12 Cynicism about international law can thus be seen to stem from a ‘gap between expectation and experience’.13 This might also be the reason why one of the most prominently discussed examples in this volume is the International Criminal Court, which international lawyers currently perceive to be falling short of its promise.14 The ‘gap between expectation and experience’ regarding the International Criminal Court seems to be perceived as particularly wide. However, a different form of cynicism might sit even more uncomfortably with the self-image of international lawyers. Cynicism might result from the realisation that legal expert knowledge does not, in most cases, yield answers that are uncontestably true. International lawyers may be yet another elite caste that uses its expert knowledge and language to condescendingly impose their values on the world. This is at least the impression that some proponents of a backlash against international law seem to have or propagate.15 When international lawyers nonetheless insist on the truth of their claims, critical observers might perceive this as a hypocritical move that aims to insulate elite values from political contestation.16 Regardless of whether this impression is accurate or not, it is an important aspect of the debate about cynicism in international law. In this volume, Shiri Krebs’ contribution addresses this aspect. She shows that expert discourses can be perceived as a cynical tool in the pursuit of political aims in the context of international humanitarian law.17 Ultimately, the law cannot fulfil its function if both sides to a conflict can, at first sight at least, plausibly claim that the other one is using the law cynically, in bad faith, as a form of lawfare.18 Gerry Simpson suggests an understanding of cynicism that includes not only the hegemon’s cynicism and the cynicism inherent in international legal rationality, but also a playful cynicism that seeks to expand the juridical realm.19 Much like Diogenes expanded the realm of what was until then understood as philosophical, international lawyers can and should explore what lies beyond a narrow understanding of what it is that international lawyers do, Simpson argues. In this volume, Hengameh Saberi takes a similar approach, highlighting the opportunities that philosophical cynicism might offer for a constructive development of international law. The contributions to this volume show that cynicism as a concept is closely connected but not identical to hypocrisy20 and scepticism. Sloterdijk’s modern cynicism of the powerful often takes the form of hypocrisy. While publicly

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Id., p. 65; see the contributions of Hengameh Saberi and Elisabeth Baier in this volume. Koskenniemi (2018). 14 See the contributions of Elisabeth Baier and Gabriel Lentner in this volume. 15 Koskenniemi (2019), pp. 19, 22; cf. also e.g. Davis (2013). 16 Koskenniemi (2019), pp. 19, 22. 17 See the contribution of Shiri Krebs in this volume. 18 Cf. id.; and the contribution of Christian Pogies in this volume. 19 Simpson (2019). 20 See Koskenniemi (2017) p. 52; see the contribution of Elisabeth Baier in this volume. 13

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professing to safeguard democracy and human rights, one may actually work in bad faith to undermine these values or at least to exempt oneself from them. In this volume, Elisabeth Baier provides an example for such hypocrisy: the United States’ unwillingness to subject its own nationals to international criminal jurisdiction while supporting the prosecution of other states’ nationals.21 Further, as Caroline Lichuma argues in her contribution, some objections raised by states to the implementation of economic, social and cultural rights might also be understood in that manner. Non-state actors may likewise act hypocritically, for example when they abuse tax law to minimise their taxes—a practice that Helene Hayden analyses in this volume. Critical scepticism is necessary for scholars to adequately exercise their role.22 But cynicism seems to have a way of inviting more cynicism.23 An exaggerated scepticism may lead to universal distrust, a kind of cynicism that sees everyone and everything as acting in bad faith.24 An exaggerated scepticism might also be used cynically to deflect well-founded criticism.25 Recurring disappointment about the gap between ideal and reality in international law may facilitate the use of such strategies. ‘Destructive cynicism’ is appealing because it ‘is convenient and easy’. As a result, it seems at times ‘fashionable to be a deeply sceptic and sarcastic cynic to remain interesting in debates’.26 In contrast, constructive scepticism tends to be much more difficult and makes its authors vulnerable to cynical attacks. Nonetheless, cynics acknowledge the existence of legal—or other social—standards. The ancient cynics acknowledged them to breach them, modern cynics acknowledge them to hypocritically circumvent them or to criticise everyone and everything for failing to meet them until nothing legitimate remains. Cynicism thus is neither nihilism nor anarchism; cynical actors accept a rules-based order. However, cynicism has the potential to undermine a rules-based order at its very basis: if everyone is acting in bad faith anyway, why should one care about norms rather than one’s immediate self-interest? This sentiment could ultimately lead to a nihilism that discards with the necessity—or possibility—of legal (or moral) standards altogether. There is no common understanding of cynicism, neither among the contributors to this volume nor among scholars in general. It is therefore difficult to apply cynicism as an analytical tool that relates to a clearly circumscribed phenomenon, as Heike Krieger notes in her Concluding Observations. Cynicism ultimately remains an elusive phenomenon. It might even be an essentially contested concept in the way that many different conceptions of it are conceivable and none of these conceptions can claim to be the right one.27

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See the contribution of Elisabeth Baier in this volume. See the contribution of Gabriel Lentner in this volume. 23 See the contributions of Elisabeth Baier and Caroline Lichuma in this volume. 24 See the contributions of Caroline Lichuma, Shiri Krebs and Elisabeth Baier in this volume. 25 See the contributions of Caroline Lichuma and Shiri Krebs in this volume. 26 See the contribution of Elisabeth Baier in this volume. 27 Cf. Ehrenberg (2011), p. 219. Cf. also the different uses of ‘cynicism’ in Lee (2002), pp. 232, 244. 22

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Nonetheless, the concept refers to social practices in international law in a way that strikes a chord with many observers. Some emphatically confirm the existence of cynicism in international law in many shapes and forms. Others reject the concept as an unwarranted (cynical?) attack on the legitimacy of the project of international law. We, the editors of this volume, hope that our project on the question of ‘Cynical International Law?’ is not itself perceived to be cynical. We rather hope that it can contribute to better understand the current challenges international law faces and provide insights that might help to meet them.

2 Cynicism in International Law In the current discussions about a ‘crisis’ of, or ‘backlashes’ against, international law, cynicism has not been a key aspect yet. We believe however that the concept of cynicism can provide valuable insights for this discussion. Cynicism might be a symptom or a cause for the current ‘crises’; alternatively, it might be a chance for international law if it provides the basis for constructive critique. This volume seeks to provide a framework for discussing the phenomenon and its relevance to international law in a more coherent, overarching way that comprises approaches from international relations, international legal theory, public international and European Union law. In this volume, two different perspectives on cynicism in international law are reflected: first, the cynicism that may be inherent in international law, either structurally in the law itself or in certain actors, such as scholars or courts; second, the cynical use of international law, and the question of whether international law provides tools to react to such use. The contributions in this volume explore the significance of such cynicisms in current debates of various fields, theoretical as well as more practical ones, and investigate the phenomenon empirically.28 Draft versions of many of these chapters also inspired Völkerrechtsblog’s online symposium ‘Cynical International Law?’ published alongside the conference that brought together the contributors of this volume.29 The first part deals with potentially cynical foundations of international law. To start with, Theresa Reinold argues that international law enjoys some degree of autonomy from power. While open to certain political stimuli, international law is not merely window-dressing for the preferences of powerful actors, but actually constrains what they can argue and do. Powerful actors are thus limited in their attempts to use international law in a cynical way. According to Reinold, the conceptual basis for this (relative) autonomy and its restricting effect on a cynical use of international law is an aspiration for coherence among international actors: legal change requires a consensus that powerful actors cannot achieve unilaterally.

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For the latter, see the contributions of Jesse Claassen and Shiri Krebs in this volume. See https://voelkerrechtsblog.org/symposium/cynical-international-law/.

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Gabriel Lentner sees cynicism and critique as discursive practices that inadvertently contribute to upholding the status quo. Such practices not only fail to remedy injustices; they can even contribute to a kind of fatalism that accepts current injustices as unavoidable, cementing them and their underlying power relationships. Lentner thus argues that cynical and critical approaches can be an obstacle to ‘real change’. Hengameh Saberi suggests seeing cynicism in a more favourable light. Revisiting the philosophical origins and development of the concept of cynicism, she argues that cynicism as a philosophical concept has the potential to empower political agency against exclusionary social structures. Against this backdrop, she reflects on how perceiving international law from a cynical perspective can make use of this potential, for example as a tool to empower marginalised actors. The second part attempts to identify potentially cynical actors. Konstantin Kleine analyses the work of the International Law Commission. According to his findings, the work of the International Law Commission is characterised by legalism and originalism, two approaches that emphasise state sovereignty while neglecting the impact of political interests on state behaviour. Kleine considers these approaches to enable states to use international law in a cynical fashion, and calls upon the International Law Commission not to give a legal cover to states’ political interests. In her comment, Patrícia Galvão Teles inter alia stresses the International Law Commission’s continuous relevance for international law-making. Teles provides concrete examples, particularly the work of the International Law Commission on the new topic ‘Sea-level rise in relation to International Law’, to demonstrate the added value of this work and to show how the Commission can successfully address complex and contemporary legal challenges. Transnational judicial activism by international and national courts is the subject of Daniel Quiroga Villamarin’s contribution. Long considered to be a force for the progressive development of international law, particularly human rights, such judicial activism might also be used to advance illiberal aims. In his comment, Andreas Paulus inter alia underlines that since judges are constrained by positive law their potential for innovation and activism is limited. Judges have to balance community interests with rights of states and individuals and are not a vehicle of revolution but at best evolution. Christian Pogies shows that international law’s capacity to contain and settle disputes can be limited when parties to an arbitration engage in ‘lawfare’. The South China Sea arbitration is taken by Pogies as a vivid reminder that history and China’s experience of colonisation may serve to construct narratives of international law that are mutually perceived as cynical. In her comment to Christian Pogies’ chapter, Nele Matz-Lück points out that despite the UN Convention on the Law of the Sea’s inherent limitations and the valuable questions that can be raised regarding its genesis and the validity of its norms, it remains the primary source for a peaceful order of the ocean.

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This volume’s third part examines EU Law and a selection of sub-fields of public international law. Jesse Claassen explores the strategic use of the ECJ’s preliminary ruling procedure by national courts. He argues that it can be a form of cynicism when national courts use the preliminary reference procedure with the aim of overruling the decisions of other national actors, including other courts and the legislator. Claassen illuminates such (potentially) cynical use by empirically analysing Dutch courts’ decision-making. Caroline Lichuma analyses the way in which many states used to and still reject a more prominent role for economic, social and cultural rights; a rejection that has its roots in the political tensions of the Cold War era. Recognising that legitimate concerns exist concerning these rights’ application, Lichuma points to cynical justifications of non-compliance in some instances, and that in particular the wording of Article 2(1) International Covenant on Economic, Social and Cultural Rights, which gives leeway to states to ‘take steps’, facilitates such arguments. In his comment, Dominik Steiger inter alia points out that, while states may have wanted to limit their commitment to economic and social rights, they nevertheless did commit themselves. Furthermore, Steiger argues that approaches rooted in the political sciences and economics offer insights for dealing with the problems standing in the way of the full realisation of economic and social rights. Shiri Krebs examines the perception of international humanitarian law in the Israeli-Palestinian conflict and finds that a legal cynicism is widespread among Israeli citizens. These findings are based on a survey experiment fielded in Israel in 2017 with a representative sample of 2,000 Jewish-Israeli citizens. Drawing on observations of the US legal system, Krebs defines legal cynicism as a fundamental distrust in the basic intention of the laws and legal authorities. Based on an empirical and qualitative analysis, she argues that actual or perceived politicisation of institutions and the indeterminacy of the law may result in an amplification of factual and legal disagreement. Elisabeth Baier traces the challenges that the International Criminal Court has been facing since its inception. The high hopes that accompanied the Court’s beginnings created an enormous Fallhöhe,30 which generated a potential for cynical actions towards the Court that were not only conducted by states, but by the judicial culture at the Court itself. Baier suggests a distinction between different forms of cynicism surrounding the International Criminal Court: dismissive, abusive, discursive and institutional cynicism. In contrast to such merely negative forms of cynicism, Baier proposes that the cynical struggle should be used by the International Criminal Court as part of its coming-of-age story—as a chance to regenerate itself as an institution, to demystify its aims and to return to realistically and clearly defined maxims in the spirit of philosophical cynicism. The fourth part is dedicated to the concept of abuse of rights. Andrea Faraci and Luigi Lonardo explore the origins of the concept of an abuse of rights in Roman law,

30 Elisabeth Baier in this volume: ‘The higher the position of the hero, the deeper his fall, and this fall is expected and even wanted by the audience.’

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which was developed based on the principles of aequitas and bona fides. These principles provided the rigid Roman legal system with flexibility and permitted the introduction of extra-legal considerations such as morality. The authors demonstrate that the general principles of law of good faith and equity may equally form the basis of the prohibition of abuse of rights in international law. However, as welcome as the ability of the prohibition of abuse to counter cynical uses of the law might be, the authors warn against its potential to masquerade cynicism by international law’s most powerful actors. In his comment, Helmut Aust inter alia warns against calling too openly for transcending the exclusive positivism of international law through the doctrine of abuse of rights as this could be a classic case of ‘be careful what you wish for’. Helene Hayden notes that, to the general public, aggressive yet lawful tax planning and abuse of tax regulations31 may seem equally cynical, but for many companies the distinction is crucial. While a ‘limited right to cynicism’ exists to opt for the most efficient tax arrangement, artificially creating conditions to profit from tax benefits may cross the threshold into an abuse of rights. Hayden analyses both the case law of the European Court of Justice as well as EU secondary law to carve out specific criteria for finding an abuse and thereby illustrates the difficulties the EU legislator faces in drafting generally applicable anti-abuse rules. Philipp Janig considers the prohibition of an abuse of rights with regard to nationality planning in international investment law, where investors seek to maximise protection from certain international investment agreements. While legitimate nationality planning by corporate investors is one-sidedly meant to further their particular interests, such behaviour might hardly be considered downright cynical. The line to cynicism—and to abuse of right—might, however, be crossed where such practices would lead to the protection of investors that only purport to conduct business within a certain state with the sole aim to fall under the protection of a certain treaty. He analyses the evolving arbitral jurisprudence on the concept of abuse of rights which seeks to carve out the thin line between legitimate nationality planning and an illegitimate abuse of right. In her Concluding Observations, Heike Krieger rejects the idea that the notion of cynicism has merit for a positivist legal analysis. She argues that actors’ potentially cynical intentions do not matter to the law and the law itself cannot be considered ‘cynical’ in a meaningful way. As an elusive notion, as an empty signifier, cynicism risks being used as an argumentative shortcut. Understood as a political emotion, however, cynicism can have a negative impact on the authority of the law and, in that sense, it is relevant to the current crisis of international law: ‘an attitude of good faith is an indispensable element for the political culture in which international law can flourish’.

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To be distinguished from criminal tax evasion, see Helene Hayden in this volume.

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References Anghie, A. (2005). Imperialism, sovereignty and the making of international law. Cambridge: CUP. Breuer, M. (Ed.). (2019). Principled resistance to ECtHR judgments – A new paradigm. Heidelberg: Springer. Davis, D. (2013). Britain must Defy the European Court of Human Rights on prisoner voting as strasbourg is exceeding its authority. In S. Flogaitis, T. Zwart, & J. Fraser (Eds.), The European Convention of Human Rights and its discontents: Turning criticism into strength (pp. 65–70). Cheltenham: Edgar Elgar. Ehrenberg, K. M. (2011). Law is not (best considered) an essentially contested concept. International Journal of Law in Context, 7(2), 209–232. Koskenniemi, M. (1989). From apology to Utopia: The structure of international legal argument. Cambridge: CUP. Koskenniemi, M. (2017). Between commitment and cynicism. In J. d’Aspremont, G. Tarcisio, A. Nollkaemper, & W. G. Werner (Eds.), International law as a profession (pp. 38–66). Cambridge, New York: CUP. Koskenniemi, M. (2018). T.M.C. Asser Annual Lecture – International Law and the Far Right: Reflections on Law and Cynicism. Retrieved 31 January 2020, from https://www.youtube.com/ watch?v¼zHRiBH2g15I Koskenniemi, M. (2019). International law and the far right: Reflections on law and cynicism. The Hague: TMC Asser Press. Krieger, H. (2019). Populist governments and international law. European Journal of International Law, 30(3), 971–996. Krieger, H., & Nolte, G. (2019). The international rule of law – Rise or Decline? – Approaching current foundational challenges. In H. Krieger, G. Nolte, & A. Zimmermann (Eds.), The international rule of law rise or decline? (pp. 3–30). Oxford: OUP. Lee, H. (2002 [1960]). To Kill a Mockingbird. New York: Perennial Classics. Madsen, M. R., Cebulak, P., & Wiebusch, M. (2018). Backlash against International Courts: Explaining the forms and patterns of resistance to international courts. International Journal of Law in Context, 14(2), 197–220. Marxsen, C. (2014). The crimea crisis: An international law perspective. Heidelberg Journal of International Law, 74(2), 367–391. Nijman, J. E., & Werner, W. G. (2018). Populism and international law: What backlash and which Rubicon? Netherlands Yearbook of International Law, 49, 3–17. Simpson, G. (2019). Keynote Speech – how to be cynical: Some suggestions. Retrieved January 31, 2020, from https://voelkerrechtsblog.org/how-to-be-cynical-some-suggestions/ Sloterdijk, P. (1983). Kritik der zynischen Vernunft (Vol 1). Frankfurt am Main: Suhrkamp. English translation from Sloterdijk, P. (1987). Critique of Cynical Reason. Minneapolis, MN: University of Minnesota Press.

Björnstjern Baade is a senior research fellow at the Institute for Public and International Law of Freie Universität Berlin and postdoc in the working group ‘Towards a Proceduralization of International Law?’ of the Max Planck Institute for Comparative Public Law and International Law. Dana Burchardt is a senior research fellow at Freie Universität Berlin and member of the Berlin Potsdam Research Group ‘International Rule of Law – Rise or Decline?’. Prisca Feihle is a doctoral candidate and research fellow at Freie Universität Berlin.

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Alicia Köppen is a doctoral candidate at Humboldt Universität zu Berlin, law clerk at Berlin Appellate Court (Kammergericht Berlin) and member of the Völkerrechtsblog editorial team. Linus Mührel is a doctoral candidate at Freie Universität Berlin and research fellow at Technische Universität Dresden. Lena Riemer holds a PhD from Freie Universität Berlin where she previously worked as a research fellow. Raphael Schäfer is a doctoral candidate at Ruprecht-Karls-Universität Heidelberg and research fellow at the Max Planck Institute for Comparative Public Law and International Law.

Part I

Cynical Foundations of International Law

Cynicism and the Autonomy of International Law Theresa Reinold

Abstract This contribution explores the limits encountered by actors trying to use international law for cynical purposes and seeking to manipulate it as they see fit. It defends the idea that present-day international law is not cynical per se; that it is merely a structure created by agents who might then use this structure for cynical purposes (or not). Although the international legal system is more prone to being politicised and abused by powerful actors than domestic legal systems, there are limits to what international law allows powerful actors to do. Put differently, international law enjoys a certain autonomy from politics. The present contribution seeks to identify the basis of the law’s autonomy, arguing that international law should be viewed as a coherenceseeking system. This ‘coherence bias’ not only accounts for the law’s responsiveness to political stimuli but also forms the basis of its autonomy, because (ab)uses of the law that are too cynical to be perceived as being coherent with the values of the international community at large will not be allowed to affect the substance of the law.

1 Introduction Watching the news these days might lead to the impression that world politics is dominated by warmongering, megalomaniac orange men, cartoonesque looking dictators toying with weapons of mass destruction, murderous Arab princes, and many other unsavoury figures, all of whom bend and break the law as they see fit. The apparent mushrooming of such ruthless, cynical actors might lead one to believe in the triumph of realpolitik and the irrelevance of international law.1 Is cynicism in international law thus inevitable? And are there ways to counteract the usurpation of

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The link between cynicism and realpolitik will be explained further below.

T. Reinold (*) Universität Duisburg-Essen, Duisburg, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_2

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international law by cynical actors? The answer to the first question will be rather brief: yes, of course, cynicism will always be present in international law, because international law—as all law—is a product of human interaction, and as human beings have both moral and cynical impulses, this will also be reflected in the ways they (ab)use the law. The answer to the second question, by contrast, requires more elaboration and will be the subject of this chapter. This contribution defends the idea that present-day international law is not cynical per se; that it is merely a structure created by agents who might then use this structure for cynical purposes (or not). It has become commonplace to assert that power politics permeate international legal discourse and that the international legal system is more prone to being politicised and abused by powerful actors than domestic legal systems. At the same time, however, there are limits to what international law allows powerful actors to do. As the editors of the present volume have pointed out, the concept of cynicism and its relation to (ab)uses of the law remain poorly understood—the term is often invoked rather loosely by legal scholars and political scientists commenting on powerful actors’ violating, bending, or circumventing the law (and getting away with it). The editors also stress that this modern-day understanding of the term cynicism is actually at odds with the original meaning of the concept, which, in ancient Greece, was used to denote a form of independent thinking, a way of critiquing the powerful. In its modern usage, the concept, as they say, ‘has switched sides’: now cynicism is not about challenging the powerful anymore, it is about legitimising and cementing their preponderance and about eliminating or coopting opposition to the exercise of power. Cynical actors thus perceive international law as both an instrument of power and an obstacle to its exercise: if the law can be utilised to further the pursuit of selfish and myopic interests of these actors, the latter will pay lip service to the law; however, if the law resists such instrumentalisation, cynical actors will simply ignore it. Cynics thus do not care about international law; their behaviour manifests a blatant disregard for the spirit of the law, and, even worse, the law seems helpless in the face of such attempts at usurpation. But is international law really that helpless? Or does international law possess tools enabling it to react to attempts at usurpation by the powerful? As the title of the present contribution already indicates, I am inclined to answer the latter question in the affirmative. To further our understanding of the concept of cynicism in international law, this chapter therefore seeks to theorise the basis of international law’s autonomy from politics, autonomy being a relative concept rather than an all-ornothing proposition. Literally, autonomy means freedom from external influence. In domestic legal systems, the Luhmannian notion of ‘normative closure’2 ensures the autonomy of the law from other spheres such as the political system, the economy, etc. The concept of normative closure means that the law itself sets the parameters for legal change, and not powerful actors participating in the legal process. International law, by contrast, cannot be considered normatively closed in the same sense because in international law political—even plainly illegal acts—may

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Luhmann (1988b).

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change the substance of the law. According to theorists of legal autopoiesis—a concept that will be elaborated upon further below—the law’s autonomy is imperiled if the distinction between legal and illegal is diluted, if political communications are allowed to directly trigger changes in the legal system.3 However, in the progressive development of international law, the distinction between legal and illegal, lex lata and de lege ferenda, is often difficult to uphold. An act of non-compliance may actually trigger the formation of a new legal rule that would universalise the preferences of the non-compliant actor. Hence, if international law lacks normative closure, what then prevents international law from becoming an apology for the pursuit of cynical purposes? How can the autonomy of international law be conceptualised, if not on the basis of normative closure? This contribution proposes to view international law as a coherence-seeking system, in that inconsistencies within the legal system but also contradictions between legal and important non-legal norms and practices provide an impetus for legal change. The implications of this assumption are two-fold: on the one hand, the desire for coherence accounts for the law’s responsiveness to political stimuli, because to retain its compliance pull, the law must be seen as being responsive to fundamental non-legal values. On the other hand, it forms the basis of international law’s autonomy from politics, because (ab)uses of the law that are too cynical to be perceived as being coherent with the values of the international community at large will not be allowed to affect the substance of the law. In the following, I will first review the existing literature on the autonomy of international law from politics, before elaborating my argument in greater detail. The autonomy of international law is not an all-or-nothing proposition. Merely asking if the law is autonomous or not does not get us very far; rather, we should accept that the autonomy of the law is a matter of degree and investigate ‘how the multiple influences on the development of the law interact’.4 State power is certainly one of these influences, but it is not the only one. International law is not determined by powerful, possibly cynical actors seeking to universalise their particularistic preferences as some strands of International Relations (IR) theory would have it. There are at least two more factors in the equation: other actors that have their own sets of preferences that may or may not be in line with those of the hegemon, and the law itself, which, because of its internal wiring, imposes limits on cynical actors seeking to manipulate it as they see fit. This contribution focuses on the latter factor in the equation—the relative autonomy of international law. ‘The intuition behind the “relative autonomy” formula’, Hugh Baxter writes, is that law is neither wholly independent of, nor entirely reducible to, political, economic and other social processes. Sensible as this intuition is, however, the idea of ‘relative autonomy’ by itself remains purely negative. It excludes two unpalatable extremes – pure formalism and

3 4

Id., pp. 346–347. Kornhauser (1998), p. 772.

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T. Reinold pure instrumentalism – but it does not by itself characterize, in positive theoretical terms, the relation between law and other social discourses or practices.5

Matthias Goldmann equally points out that ‘[t]he autonomy of the law, as much as the mainstream in international law may take it for granted and rely on it in their daily practice, is in a theoretical sense hanging in the air’.6 The present contribution seeks to bring it down to earth. However, when reviewing the existing literature, I discovered that the autonomy of international law does not seem to be a wildly popular research topic. When entering the terms autonomy and international law in Google Scholar, one does get a long list of hits, but most of them deal with issues of self-determination and secession, some with party autonomy in arbitration, judicial autonomy at the International Court of Justice, the autonomy of international organisations, etc. In the following, the scant literature on the autonomy of international law will be reviewed in more detail. To begin with, I will discuss different strands of international relations theory with a view to the autonomy (if any) these schools of thought accord to normative structures. Thereinafter, existing international law scholarship on the issue will be reviewed, and finally, I will outline my own perspective on the autonomy of international law.

2 International Relations and International Law Perspectives on the Relationship Between Politics and Law 2.1

Power and International Law: The International Relations Perspective

According to international relations realists, states exist in a self-help world and their preferences are uniformly conflictual—ranging from, at a minimum, selfpreservation, to, at a maximum, the quest for universal domination.7 While neo-realism assumes that structure shapes international outcomes, it claims that only material structures have this effect, whereas normative structures are believed to be epiphenomenal. International norms and institutions are viewed as a reflection of the underlying distribution of power, created by hegemonic states seeking to make the exercise of power more efficient by reducing enforcement costs. However, the explanatory power of neo-realism was called into serious doubt by the end of the Cold War, and these days it is a legitimate question if anybody is still a realist (which was already posed two decades ago by Legro and Moravcsik in their

5

Baxter (1997/1998), p. 1987. Goldmann (2016), p. 454. 7 Waltz (1979), p. 118. 6

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eponymous contribution to International Security (1999)). Neo-realists’ quest for parsimony led them to develop a theoretical account of world politics in which everything is reduced to the interaction of only two factors—the ordering principle of anarchy and the distribution of material capabilities. On paper this made neo-realism extremely appealing—after all, as scientists we aspire to explain a lot with a little, and neo-realism offered a beautifully parsimonious, elegant, and deterministic account of why things were the way they were. Yet this parsimonious theory turned out to be ill-equipped for dealing with the complex interaction among states, international organisations, non-governmental actors, etc. that characterises world politics in the twenty-first century—actors who are not merely regulated, but constituted by the normative structures in which they are embedded. Neo-realism’s ‘monocausal mania’8 thus ended up in reductionism. In contrast to neo-realism, neo-liberal institutionalism—as indicated by the label—accepts a much greater role for norms and institutions in shaping state behaviour. Both schools of thought share a number of central premises—the assumption of actor rationality, state-centrism, a tendency to black-box what is going on within states, the central role accorded to anarchy—yet neoliberal institutionalists believe that cooperation is both desirable and possible. Whereas realists maintain that under conditions of anarchy, accepting the constraints of international law would be imprudent and potentially suicidal, neoliberal institutionalists argue that welfare-maximising states are well-served by participation in international regimes. While the lack of an overarching authority poses a significant hurdle to cooperation, this can be remedied by the establishment of international regimes. Regimes facilitate cooperation by providing information, building trust, lowering transaction costs, institutionalising reciprocity, and creating a ‘shadow of the future’. Neoliberal institutionalists’ interest in international regimes led to intensified cooperation between the disciplines of International Relations and International Law, which resulted in the publication of the seminal Legalization and world politics special issue in International Organization two decades ago.9 In the following years, interdisciplinary research blossomed.10 However, although neoliberal institutionalism posits that the causal arrows flow in both directions—from politics to law and vice versa—the influence accorded to international law remains nonetheless limited. Participation in international regimes does constrain the menu of options available to states, which means that norms and institutions restrict state behaviour, yet they are not seen as constituting actor identities and preferences. This is where constructivism comes in, which is based on the fundamental assumption that agents and structures are co-constituted. The brand of

8

Moravcsik and Legro (1999), p. 50. Goldstein et al. (2000). 10 See e.g. Armstrong et al. (2007), Barker (2000), Benvenisti and Hirsch (2004), Byers (2000), Dunoff and Pollack (2012), Goodman and Jinks (2004), Heupel and Reinold (2016), Holzgrefe and Keohane (2003), Koh and Hathaway (2004), Reus-Smit (2004), Simmons and Steinberg (2007). 9

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constructivism informing my argument is what Samuel Barkin has labelled ‘realist constructivism’.11 Realist constructivism looks at the way in which power structures affect patterns of normative change in international relations and, conversely, the way in which a particular set of norms affect power structures.12

It thus accepts a certain degree of autonomy for international law, without, however, theorising what exactly the autonomy of normative structures is based on. International relations constructivists draw on a long tradition in sociology according to which the relationship between agents and their environment is one of mutual constitution.13 Constructivists have imported this nexus into international relations theory, arguing that agents (states, transnational networks, individuals, etc.)—through their discourses and practices—contribute to the production, reproduction, and transformation of international structures, while at the same time international structures shape the identities and practices of agents.14 International law therefore not only regulates state behaviour but constitutes these actors in the first place, shapes their conceptions of self, and how they define their national interests. States are thus simultaneously creators and subjects of the law. Assuming the mutual constitution of agents and structures means accepting that international law is not a static set of rules, but is always in process as the relevant actors engage in legally relevant behaviour. The legal process is one of continuous challenge of existing rules, their adaptation and transformation through the practices of jurisgenerative actors. The concept of practice is therefore a fundamental category in constructivist international relations theory. Equally essential, however, is the role of discourses, i.e. ‘structures of signification which construct social realities’.15 While constructivists agree that hard power still matters, and that anarchy does make cooperation more difficult, they argue that self-help and power politics do not follow either logically or causally from anarchy and that if today we find ourselves in a self-help world, this is due to process, not structure. There is no ‘logic’ of anarchy apart from the practices that create and instantiate one structure of identities and interests rather than another.16

Consequently, anarchy is what states make of it.17 In sum, there is considerable overlap between basic tenets of constructivist international relations theory and fundamental assumptions held by international legal scholars: both constructivists and many international legal scholars would

11

Barkin (2003). Id., p. 337. 13 Berger and Luckmann (1969), p. 65. 14 Checkel (1998), p. 326; Dessler (1989), p. 452; Wendt (2001), pp. 185–186. 15 Milliken (1999), p. 229. 16 Wendt (1992), pp. 394–395. 17 Id. 12

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subscribe to the view that international legal rules are socially constructed, and both emphasise the significance of (state) practice and intersubjective beliefs, or opinio juris, respectively. Both international relations and international law, moreover, share the assumption of the mutual constitution of agents and structures. Further, constructivists and many international legal scholars would subscribe to the view that law is a dynamic, sometimes contested, social process. Both disciplines moreover use similar methodological tools, studying the role of legal discourses, which are characterised by the necessity to construct coherence, or normative fit, between one’s own norms and those of the interpretive community as a whole. I shall return to this point below. Before, however, let us have a look at how international legal scholars have conceptualised the role of power in the international legal process.

2.2

Power and International Law: The International Law Perspective

From a legal formalist perspective, international law ought to be seen as the antidote to power, as the best defence for the weak seeking to protect themselves against subjugation by the strong. Legal formalists assume that the law is radically determinate, that there is only one correct interpretation of any given legal norm, and that legal reasoning is autonomous from other kinds of (moral or political) reasoning. Critical legal scholars, by contrast, such as those united in the Third World Approaches to International Law (TWAIL) movement18 would oppose this view of the law as reductionist. TWAIL scholars conceive of international law as a radically indeterminate product of state power, which universalises certain narratives while silencing others, thus perpetuating existing hegemonic structures. TWAIL scholarship draws much of its insights from postcolonial thinking.19 Its central preoccupation is with empowering those actors whom Antonio Gramsci has described as the subaltern, a term that TWAIL scholars use rather generically to encompass all those who have been silenced and excluded by dominating relationships.20 The principal aim of TWAIL scholars is to transform international law from being a language of oppression to a language of emancipation.21 As such, TWAIL clearly qualifies as ‘unsettling jurisprudence’22 because it has thrown into sharp relief the need to democratise international law as well as international legal scholarship. In the latter field, the TWAIL movement remains marginalised, as Antony Anghie and Buphinder Chimni regret:

18 See e.g. Anghie (2006), Anghie und Chimni (2003), Baxi (2006), Buchanan (2008), Gathi (2000), Mickelson (1997/1998), Mutua (2000), Otto (1996), Rajagopal (2006). 19 See e.g. Said (1978). 20 Otto (1998/1999), p. X. 21 Anghie and Chimni (2003), p. 79. 22 Skouteris (1997), p. 417.

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T. Reinold How do we identify what counts as acceptable scholarship in the field of international law? Here a powerful international division of intellectual labor prevails: Northern scholars and Northern institutions set these important standards.23

The North’s de facto monopolisation of international legal discourse has certainly made it rather difficult for TWAIL to establish itself in mainstream jurisprudence, yet to be fair one should also note that the TWAIL agenda—which has been more about advocacy and less about theory-building—has equally contributed to TWAIL’s marginalisation. Despite these shortcomings, TWAIL scholars and other critical legal thinkers have successfully demonstrated that the assumption of sovereign equality notwithstanding, power does play a central role in the international legal process, both in customary and in treaty law. This is especially true for the creation (rather than application) stage of new treaty law, and for the conclusion of bilateral as opposed to multilateral treaties, as in the creation of the former, political clout translates into greater bargaining power than in the making of the latter. The role of power is moreover salient in custom formation. As Nico Krisch points out, customary rules are usually vague enough to allow for a broad impact of power at the application stage. Multilateral treaties, though, in particular those with precise rules and enforcement mechanisms, do not allow for this latitude, and the more they form the centre of the international legal system, the more constraining the effects of sovereign equality become for dominant states.24

The Vienna Convention on the Law of Treaties25 contains a variety of provisions that seek to ensure that power differentials do not taint the law-making process, at least as regards the most blatant exercises of political power. Note, however, that apart from these obvious forms of political interference, there are many other possibilities for powerful states to shape the conclusion and content of international treaties that are not covered by the Vienna Convention. Hence the Convention offers only a partial assurance against the politicisation of international treaty law. In the Preamble of the Vienna Convention it is declared that ‘the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized’. Consent as a reflection of the sovereign equality of all states thus lies at the heart of international treaty-making. On the pacta sunt servanda principle, the Vienna Convention clarifies that this principle is not absolute and must be read in conjunction with other fundamental norms of international law, such as the prohibition of the threat or use of force. Thus, part V of the Convention, which addresses the invalidity, termination and suspension of the operation of treaties, regulates the limitations applicable to the pacta sunt servanda principle: Articles 51 and 52 of the Convention deal with situations in which consent to a treaty has not been obtained freely but

23

Anghie and Chimni (2003), p. 86. Krisch (2005), pp. 377-378. 25 Vienna Convention on the Law of Treaties, 1155 UNTS 331, entered into force on 27 January 1980. 24

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through coercion,26 spelling out the consequences of such coercion on the validity of said treaty. Article 51 of the Convention stipulates that [t]he expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

Article 52 in turn posits the nullity of a treaty ‘if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’. In sum, the secondary rules governing the formation and transformation of treaty law enshrined in the Vienna Convention cannot eliminate entirely the possibility of politicising the process of treaty-making and application. However, at the very least they provide certain safeguards aimed at frustrating the most blatant forms of political interference. The process of custom formation is more elusive than treaty-making, and thus particularly receptive to hegemonic influence due to the absence of formalised procedures in this area, and due to the crucial role played by state practice in the development, maintenance, and transformation of custom. The absence of hard-andfast criteria governing the formation of customary rules favours those with the power to adapt the process to suit their needs—an insight that underlies the concept of hegemonic law-making.27 An early account of hegemonic law-making can be found in Wilhelm Grewe’s Epochen der Völkerrechtsgeschichte.28 Grewe argues that hegemons of each age left a discernible mark on their epoch’s normative structure by universalising their own expansionist ideologies.29 The main premise underlying the concept of hegemonic law-making is that hegemons—by virtue of their superior material (and possibly also soft) power—enjoy a competitive advantage over other states in shaping the international legal architecture. They command hard power assets such as large armies and the economic prowess necessary to fund these armies, develop sophisticated armoury, etc. Some may object that these power resources matter in international politics but not in international law. However, they do matter in the realm of international law as well because state practice is a constitutive element of customary international law. Consequently, states with the resources to act have more opportunities to contribute to the formation of customary rules than states that lack these resources. Their preponderant resources enable powerful states, for instance, to initiate change in customary law through the creation of precedents such as military interventions.30 In contrast to weaker states, hegemons are not only able to put forward novel claims and popularise these on the level of discourses; they moreover possess the hard power resources necessary to back their claims through actions. Weaker states, by contrast, may lack the resources to engage 26

On the concept of coercion in treaty-making, see De Jong (1984). See e.g. Alvarez (2003), Byers (1999), Byers (2005), Byers and Nolte (2003), Krisch (2005), Vagts (2001). 28 For a critical reception of Grewe’s work, see Fassbender (2002). 29 Grewe (1984), pp. 43–44. 30 Byers (2005). 27

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in practices and may even fail to respond to the acts of powerful states, which can be interpreted as acquiescence. Another factor privileging powerful states in custom (as well as treaty) formation is that their hard power assets enable them to exert influence on the incentive structure of weaker states. Powerful states can ‘buy’ consent and manipulate opinio juris in their favour by shaping the incentives and disincentives for other states to either acquiesce in a particular hegemonic practice or oppose it. Norm creation responds to economies of scale, i.e. powerful states have an influence on any given normative regime because of their pervasive presence in every other regime, which makes issue-linkage possible and endows powerful states with plenty of bargaining chips that can be used to induce consent.31 Strong states moreover possess discursive power. Legal discourses provide powerful states with a forum for shaping the values and preferences of other actors. In legal discourses, powerful states are privileged storytellers, whose ideas over time come to be accepted as social facts by other actors.32 Leading states exercise disproportionate influence over legal discourses because they possess critical communication resources. They can afford to maintain large diplomatic corps, which enable them to follow international legal developments globally and to interact in a wide range of forums on a wide range of issues with other states. Small states, by contrast, often lack the resources to engage in extensive diplomacy, send large delegations to international treaty-making conferences, maintain permanent missions, report publicly on their acts, etc. The acts, omissions, and statements of weak states are unlikely even to be reported publicly. The sheer number of communicative interactions thus makes it possible for a hegemon to propagate its norms more effectively than smaller states. Hence, ‘power, in the sense of communications resources, may be a significant part of the norm story’.33 In sum then, powerful states shape international law in manifold ways. However, accepting that powerful actors are privileged storytellers in legal discourses and that they tend to contribute more to state practice than weaker states does not mean that one must subscribe to neo-realism’s crude characterisation of the relationship between international politics and law as a one-way-street. What then prevents the powerful from completely usurping international law for their purposes? Put differently, what accounts for the relative autonomy of international law from political interference?

31

Fox (2003), p. 188. Reus Smit (1997), pp. 584–585. 33 Florini (1996), p. 375. 32

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3 The (Relative) Autonomy of International Law To identify the extent of international law’s autonomy, we need to explore in more detail how exogenous factors—such as the practice of powerful states, for instance—interact with the internal wiring of legal systems. The latter is at the heart of the concept of legal autopoiesis. Legal autopoiesis presumes that agents and structures are co-constituted, that not only is the legal system continually irritated by political influences, but that there is also a feedback mechanism from the legal back to the social and political spheres: The legal impulse . . . will create perturbations in the other social system . . . social change in its turn will work back as an irritation to the legal side of the institution thus creating a circular co-evolutionary dynamic that comes to a preliminary equilibrium only once both the legal and the social discourse will have evolved relatively stable eigenvalues in their respective sphere.34

However, while legal systems may be irritated from the outside and are thus ‘cognitively open’, they remain ‘normatively closed’ and therefore evolve only in accordance with their internal logic.35 The notion of normative closure means that the law itself sets the parameters for legal change, and not powerful actors participating in the legal process. This self-referentiality is the very basis of the law’s autonomy.36 The legal system produces its elements according to its own logic, i.e. according to the secondary rules governing the (trans)formation, application, interpretation, and termination of primary rules. Theorists of legal autopoiesis thus assume that the legal system's secondary rules prevent political variables from having a direct effect on the content of the law. Autonomy according to Luhmann et al. therefore does not mean that the law is impervious to political influences, it only means that the law’s secondary rules regulate how these exogenous stimuli affect the content of the law. Rules of recognition, for instance, define the sources of law and thereby separate law from non-law.37 By making this distinction between legal and illegal the legal system asserts its autonomy vis-à-vis political actors. The law’s autonomy is imperilled, however, when the binary distinction between legal and illegal is diluted, when decisions are taken in the legal system itself increasingly according to the difference between beneficial and harmful rather than the difference between legal and illegal.38

If moral or political communications were thus allowed to directly trigger changes in the legal system, this would undermine the law’s autonomy, at least according to the theory of legal autopoiesis.

34

Teubner (1998), p. 28. See e.g. Lempert (1988), p. 158; Luhmann (1988a), p. 20; Teubner (1988a), p. 2. 36 Teubner (1988b), p. 222. 37 On rules of recognition and other secondary rules, see Hart (1961), pp. 78–79. 38 Luhmann (1988b), p. 347. 35

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However, in the (trans)formation of international legal rules the distinction between legal and illegal, between law-breaking and law-making is often difficult to uphold. Because of the openness the secondary rules of international law, the latter cannot be regarded as normatively closed, and hence its autonomy of must be conceptualised in different terms than that of domestic legal systems. Reflecting on the theory of legal autopoiesis, Richard Lempert writes that if this theory is not falsified by examples of legal norms that have changed because of extra-legal factors, the theory must be able to accommodate the examples and should, ideally, offer us a mechanism which explains how extralegal norms and values come to influence legal norms . . . This is particularly important for a general theory of legal systems since many of the most interesting questions in the contemporary sociology of law . . . depend on understanding the mechanisms which render law partially autonomous – that is both independent to some degree and open to extra-legal influences.39

In this section I offer such an explanation that zeroes in on the concept of coherence—informed by the psychological notion of dissonance reduction—which is the foundation of international law’s (partial) autonomy. The concept of cognitive dissonance was coined by Leon Festinger, who studied the ways in which human beings try to make sense of their behaviour and their environment.40 This environment also includes the (legal and non-legal) norms that govern people’s daily lives. In his Theory of Cognitive Dissonance, Festinger argues that human beings constantly strive to avoid cognitive dissonance.41 The term cognitive dissonance denotes ‘the existence of non-fitting relations among cognitions’, the latter being defined as ‘any knowledge, opinion, or belief about the environment, about oneself, or about one’s behavior’.42 It has been called the ‘most gripping observation’ made by theorists of cognitive dissonance that humans have a marked tendency to change the elements that constitute their cognitive structure to reduce dissonance among them, and thus restore coherence.43 Dissonance is a highly uncomfortable state: if a balanced, i.e. coherent state does not exist, ‘then forces toward this state will arise’.44 We all aspire to lead lives that are—at least in our own perception—meaningful, and we cherish cognitive stability, coherence, and predictability. Human beings therefore want to perceive the legal system that they are subjected to as a more or less coherent set of rules, i.e. as one that does not exhibit major dissonance neither in its internal make-up, nor in the fit of legal rules with important political and moral values. This insight has also made inroads into legal scholarship, which in the past decades has taken a ‘cognitive turn’.45 Based on the assumption that people try to 39

Lempert (1988), p. 187. Festinger (1957). 41 Id. 42 Festinger (1957), p. 3. 43 Heider (1946), p. 108. 44 Id. 45 See e.g. Schlag (1988/1989), Suchman (1997), Simon (1998), Winter (1989). 40

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make sense of the world by constructing coherent narratives from events, Nancy Pennington and Reid Hastie, for instance, demonstrate that jurors organise the evidence in a jury trial in the form of a coherent causal story, and that this story predicts their verdict.46 The same can be said of judges’ behaviour: as Dan Simon argues, when deciding a hard case, the judge’s thought process evolves naturally towards a state of coherence. That is, the cognitive system imposes coherence on the arguments so that the subset of arguments that supports one outcome becomes more appealing to the judge and the opposite subset . . . turns less favorable.47

Thus, human behaviour, including the behaviour of judicial actors, displays a ‘coherence bias’48 which has its roots in the notion of structural dynamics, a concept that stresses the layout of forces within cognitive structures . . . the interrelationship among the elements determines the forces within the structure . . . Coherence holds cognitive structures in position, whereas incoherence generates pressure for change.49

This insight has also informed seminal writings in legal theory, including Ronald Dworkin’s notion of ‘law as integrity’,50 Jeremy Waldron’s argument about ‘systematicity’,51 and Niklas Luhmann’s appeal to ‘consistency’,52 which are all informed by the same basic assumption (often not made explicit) about human nature, according to which human beings generally feel the need to construct coherent causal stories and therefore also want to perceive the legal rules they are governed by as a more or less coherent framework, one that is free of fundamental contradictions regarding its overarching principles and goals. Dworkin’s much-discussed concept of law as integrity demands that the public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation.53

Dworkin points out that most people would intuitively reject ‘checkerboard laws’ that fail to treat like cases alike.54 Where does this apparently universal rejection of checkerboard laws come from? Dworkin merely writes that ‘our instincts condemn it’55 but does not elaborate upon this point. In a similar vein, Neil MacCormick points out that the law’s drive towards coherence is due to universally shared

46

Pennington and Hastie (1986), p. 245. Simon (1998), p. 20. 48 Id. 49 Id., p. 47. 50 Dworkin (1986), p. 179. 51 Waldron (2008), p. 32. 52 Luhmann (1993), pp. 18–19, pp. 222–223, p. 272, pp. 368–372. 53 Dworkin (1986), p. 47, p. 219, p. 227. 54 Id., pp. 179–181. 55 Id., p. 180. 47

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psychological impulses.56 Coherence in legal reasoning, he observes, does not exhaust itself in ensuring logical consistency among rules, but additionally requires that ‘the multitudinous rules of a developed legal system should “make sense” when taken together’.57 Coherence in legal reasoning thus requires us to ‘find a way of making sense of the system as a whole’.58 Individual norms of the legal system must therefore be compatible with its overarching goals and principles. Thus, ‘to explicate the principles is to rationalize the rules’.59 This drive towards unity of principle, or overall coherence, is a universally cherished quality of persuasive legal arguments, as has been demonstrated in a large-scale comparative study of legal interpretation across a range of different legal systems.60 Despite significant systemic differences, the investigators uncovered a striking similarity in the types of arguments that were considered to be convincing by the relevant audiences. One category of persuasive arguments, they found, are ‘systemic’ ones, that is, arguments ‘that work towards an acceptable understanding of a legal text seen particularly in its context as part of a legal system’.61 Examples of such systemic arguments include arguments from precedent, arguments from analogy, and arguments from general principles. This psychological process of ‘making-sense’ of a set of legal rules is what Joseph Raz describes when he points out the difference between the point of view of an observer external to a particular legal system, and the perspective of an insider. While the outsider may regard any given legal system as an incoherent assemblage of norms, and may be objectively justified to do so, the insider cannot possibly do this: It makes no sense to accept an assemblage of norms as one’s own norms unless one regards them as valid and justified, and one cannot regard them as justified unless they form a coherent body.62

Coherence implies not only that the law presents itself as an internally consistent set of rules, but moreover requires consistency of the law with important non-legal norms held by society at large, as law is, ‘by its very nature . . . deeply implicated in the practices and conventions of the communities it governs’.63 This insight was also not lost on ancient philosophers, with Aristotle arguing that ‘nomos [enacted law] has no power without the force of ethos [custom]’.64 On that view, societal norms represent the infrastructure and foundation of a legal order regulating life in the

56

MacCormick (1978), p. 152. Id. 58 Id. 59 MacCormick (1978), p. 155, p. 157. 60 MacCormick (2005), pp. 124-126. 61 Id., p. 124. 62 Raz (1994), p. 281. 63 Postema (1994), p. 377. 64 Quoted in Postema (2008), p. 46. 57

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polity.65 This fundamental assumption actually pervades ancient and medieval philosophy, as Gerald Postema argues in Conformity, Custom and Congruence.66 While political scientists would find this assertion about the need for coherence between positive law and fundamental non-legal values and practices rather straightforward, to many modern lawyers this might not be so obvious. To be sure, a given legal norm does not lose its character as law just because it is at odds with societal norms, yet this will likely undermine the norm’s compliance pull, which in a voluntarist system like the international one is more consequential than in domestic legal systems, where coercive compliance is always present as a ‘back-up’ solution should normative compliance fail.67 While legitimacy and legality are two distinct categories and while there might be room for disagreement about whether value incoherence should be equated with a lack of legitimacy, the point remains that one cannot grasp how the law functions and how it evolves without considering its (in)compatibility with important non-legal norms and practices. However, as Lon Fuller regrets in his Anatomy of Law, lawyers tend to exhibit a certain kind of theoretical blindness: Biased by the ‘intellectual flavour of made law’68 many present-day legal scholars are overly focused on positive law, thereby ignoring the substratum of non-legal norms that not only contribute to the law’s legitimacy but also to its progressive evolution. This is a significant omission, as the existence and content of explicit laws depend on a network of tacit understandings and unwritten conventions, rooted in the soil of social interaction. We cannot fully understand law, we cannot appreciate its dynamic character, the role it plays in human affairs, or the kind of public good it offers, if we fail to attend to this implicit dimension of law.69

Fuller fundamentally argues that modern law is closely intertwined with the mores of society, and that for the law to survive, a significant degree of coherence between positive law and societal values and practices is necessary.70 This argument has been considered Fuller’s ‘most important jurisprudential legacy’ which highlights the ‘connections between fundamental social and moral phenomena and basic features of law’.71 If, on the other hand, the laws are fundamentally at odds with the norms and practices of society, this provides an impetus for legal change to reduce the gap between the law as it stands and the law as it ought to be in the eyes of its addressees. Hence, we should not view international law as a closed and static system which is immune to political impetuses, but rather understand it as a dynamic social process

65

Id. Quoted in Id. 67 See e.g. Franck (1988). On the distinction between different types of compliance, see Etzioni (1964). 68 Fuller (1968), p. 57. 69 Postema (1994), p. 361. 70 Id., p. 368. 71 Postema (1994), p. 362. 66

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in which inconsistencies within the legal system, but also contradictions between legal and important non-legal norms provide an impetus for legal change. Now, what does this imply for the autonomy of international law? While international law is dynamic and receptive to the influence of powerful actors, one important caveat is that powerful states cannot unilaterally change the law by breaking it. Non-compliance will only have law-generating effects if it is perceived as reducing dissonance between the law as it stood before the violation occurred, and the values of the majority of participants in the legal process. According to the theory of legal autopoiesis, only law can change the law. They accept that the initial impetus for legal change usually comes from the political sphere; however, the process of translating political preferences into legal substance is governed by the secondary rules of the legal system. This, according to Luhmann et al., is what ensures the law’s autonomy from political usurpation. Yet international law defies the autopoietic notion of normative closure. The notion of ex injuria jus non oritur is generally seen as immunising the law against political interference, but in international law, breaches of the law may actually trigger the emergence of new legal rules. Friedrich von Savigny—and many others after him—maintained that custom should not rest on error.72 International lawyers have long held onto the fiction that illegal behaviour cannot give rise to new law, which is also reflected in Article 38(1)(b) of the ICJ Statute, which states that the Court ‘shall apply . . . international custom, as evidence of a general practice accepted as law [emphasis mine]’. However, if a particular practice has to be ‘accepted as law’ as Article 38(1)(b) stipulates, this implies that breaches of the law cannot give rise to new legal rules, as any deviating practice will initially be at odds with existing law. This in turn would prevent the law from adapting to changing political circumstances and would risk the emergence of major dissonance between the norms of the legal system and its political environment, which would in turn erode the law’s legitimacy and thus its compliance pull. Scholars such as Anthony D’Amato therefore defend a conception of customary law that allows for the transformation of opinio juris—triggered by states violating existing norms— which eventually leads to a modification of these norms: [A]n illegal act by a state contains the seed of a new legality. When a state violates an existing rule . . . the illegal act itself becomes a disconfirmatory instance of the underlying rule . . . eventually a new line of conduct will replace the original rule by a new rule.73

In the area of custom, the principle ex iniuria jus non oritur is thus difficult if not impossible to uphold. In the area of treaty law, there are equally examples of treaty modification through subsequent practice. Take the UN Charter: in the history of the organisation there have been quite a few instances of ‘Charter applications that have been treated as new interpretations yet come close to, or are in effect,

72 73

von Savigny (1840), pp. 174–175. D’Amato (1971), p. 97.

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modifications’.74 Thus, acts that were considered ultra vires at the time they were committed over time effectively changed the Charter’s provisions.75 While state practice includes quite a few precedents of treaties having been modified through subsequent practice, within the scholarly community the transformative effects of subsequent practice are contested. Georg Schwarzenberger writes that de facto amendment of a treaty may occur as ‘the result of a gradual and inarticulate process of departure from consensual engagements without overt objection from other contracting parties’.76 Joost Pauwelyn77 and Andrea Bianchi78 also acknowledge the possibility of treaty modification through subsequent practice. Sean Murphy, by contrast, concludes that states and tribunals seem to ‘generally resist modification of treaties through subsequent practice’.79 Yet Murphy also acknowledges that this conclusion is not based on a comprehensive analysis of state practice, and that such an analysis might uncover ‘a greater proclivity toward modifying treaties through subsequent practice’.80 In sum, at least in customary international law, non-compliant behaviour is an important source of legal innovation, as any breach of the law contains the seed of a new rule. However, that does not mean that any act of non-compliance will give rise to a new norm—if this were the case, international law would not be able to stabilise normative expectations. While international law must reflect state interests and values in order not to be marginalised, it cannot be changed capriciously.81 The requirement of coherence reconciles the necessity of political responsiveness on the one hand and avoidance of political manipulation on the other hand by stipulating the need to construct an intersubjective consensus on the necessity to adapt the law to changing political circumstances. Only if the law-breaker manages to construct a perception of coherence between the suggested innovation of the law on the one hand, and the norms shared by the majority of participants to the legal process on the other hand, will the attempt at law-making be successful. The perception of coherence thus ought to be shared intersubjectively and requires a certain degree of consensus about fundamental values. If such consensus is not forthcoming because the attempt at normative innovation evokes major dissonance with the values of the international community at large, the existing legal structure will remain intact. One might, of course, object, as Martti Koskenniemi does, that [c]onsensus is . . . the end-point of a hegemonic process in which some agent or institution has succeeded in making its position seem the universal or ‘neutral’ position . . . Hermeneutics, too, is a universalization project, a set of hegemonic moves that make particular

74

Liang (2012), p. 2. Id., p. 5. 76 Schwarzenberger (1967), p. 168. 77 Pauwelyn (2003), p. 50. 78 Bianchi (2009), p. 659. 79 Murphy (2013), p. 90. 80 Id., p. 90. 81 Koskenniemi (2005). 75

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T. Reinold arguments or preferences seem something other than particular because they seem, for example ‘coherent’ with the ‘principles’ of the legal system.82

I partially agree yet would still insist that the exchange of arguments in legal discourse—which has its own specific rules for determining what counts as a valid argument and what does not—and the necessity to justify one’s own subjective interpretation of the law in front of a pluralist interpretive community reduce the risk of hegemonic usurpation. From the perspective of the autonomy of the law, one could therefore argue that there is safety in numbers—at least to a certain extent. The same author who thus warned against the hegemonic nature of consensus in From Apology to Utopia acknowledges in another publication that international law, while tending to universalise the values and preferences of powerful actors, at the same time also appears as a standard of criticism and means of controlling those in powerful positions . . . As a language, it may serve many masters—but it will also socialise them in a culture biased in favour of participation over selectivity, transparency over secrecy, and responsibility for the choices it has been used to justify.83

4 Conclusion I will not end this chapter by pointing out the manifold ways in which international law has been and is currently being sidelined, breached, and instrumentalised by cynical actors. A look at the headlines on any given day suggests that the (ab)use of international law for cynical purposes is ubiquitous. What I sought to achieve in this chapter was to theorise the limits international law imposes on the cynical manoeuverings of powerful actors. While certain strands of the literature portray the relationship between power and law in rather reductionist terms and view international law as a mere reflection of the underlying distribution of power, in this contribution, I argued that the relationship between power and law is considerably more complex than that. Although international law is cognitively open, it would be wrong to assume that the international legal system’s openness to political stimuli means it lacks autonomy—on the contrary, it is precisely because of international law’s ability to adapt itself to a changing environment that the law retains its relative autonomy, legitimacy, and ultimately its compliance pull. The requirement of coherence immunises the law—at least to a certain extent—against political usurpation by cynical actors and thereby bolsters its legitimacy. Even the most powerful actors wishing to change the law must make an effort to construct normative fit between their subjective values on the one hand, and those of the international community at large on the other hand. Norms do not exist in a vacuum, but usually encounter a highly competitive environment composed of already institutionalised

82 83

Id., p. 597. Koskenniemi (2011), p. 241.

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norms, with which novel normative claims compete. The most effective way of promoting such novel claims is thus to demonstrate coherence between the new norm and existing collective standards of appropriate behaviour. A behavioural pattern—no matter how powerful the actor who engages in this behaviour—in and of itself therefore does not give rise to new law, otherwise normativity would completely disappear. Normativity arises not out of facts, but out of an intersubjective acceptance of these facts as norms. And it is the law itself that sets the conditions for such intersubjective acceptance. In that sense, we have come full circle at the end of this chapter, in that the concept of relative autonomy outlined above takes us back to the ancient understanding of cynicism described in the introduction, which was about critiquing (and thereby limiting) the exercise of power.

References Alvarez, J. E. (2003). Hegemonic international law revisited. American Journal of International Law, 97(4), 873–888. Anghie, A. (2006). The evolution of international law: Colonial and postcolonial realities. Third World Quarterly, 27(5), 739–753. Anghie, A., & Chimni, B. S. (2003). Third world approaches to international law and individual responsibility in internal conflicts. Chinese Journal of International Law, 2(1), 77–103. Armstrong, D., Farrell, T., & Lambert, H. (2007). International Law and International Relations. Cambridge: CUP. Barker, J. C. (2000). International law and international relations. International relations for the 21st century. London: Continuum. Barkin, J. S. (2003). Realist constructivism. International Studies Review, 5(3), 325–342. Baxi, U. (2006). What May the ‘Third World’ expect from international law? Third World Quarterly, 27(5), 713–725. Baxter, H. (1997/1998). Autopoiesis and the ‘Relative Autonomy’ of law. Cardozo Law Review, 19 (6), 1987–2090. Benvenisti, E., & Hirsch, M. (Eds.). (2004). The impact of international law on international cooperation. Theoretical perspectives. Cambridge: CUP. Berger, P. L., & Luckmann, T. (1969). Die gesellschaftliche Konstruktion der Wirklichkeit: Eine Theorie der Wissenssoziologie. Frankfurt am Main: S. Fischer. Bianchi, A. (2009). The international regulation of the use of force: The politics of interpretive method. Leiden Journal of International Law, 22(4), 651–676. Buchanan, R. (2008). Writing resistance into international law. International Community Law Review, 10(4), 445–454. Byers, M. (1999). Custom, power, and the power of rules: International relations and customary international law. Cambridge: CUP. Byers, M. (Ed.). (2000). The role of law in international politics: Essays in international relations and international law. Oxford: OUP. Byers, M. (2005). Not yet Havoc: Geopolitical change and the international rules on military force. Review of International Studies, 31(S1), 51–70. Byers, M., & Nolte, G. (Eds.). (2003). United States hegemony and the foundations of international law. Cambridge: CUP. Checkel, J. T. (1998). The constructivist turn in international relations theory. World Politics, 50(2), 324–348.

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Luhmann, N. (1988b). Closure and openness: On reality in the world of law. In G. Teubner (Ed.), Autopoietic law: A new approach to law and society (pp. 335–348). Berlin: De Gruyter. Luhmann, N. (1993). Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp. MacCormick, N. (1978). Legal theory and legal reasoning. Oxford: OUP. MacCormick, N. (2005). Rhetoric and the rule of law: A theory of legal reasoning. Oxford: OUP. Mickelson, K. (1997/1998). Rhetoric and Rage: Third world voices in international legal discourse. Wisconsin International Law Journal, 16(2), 353–419. Milliken, J. (1999). The study of discourse in international relations: A critique of research and methods. European Journal of International Relations, 5(2), 225–254. Moravcsik, A., & Legro, J. (1999). Is anybody still a realist? International Security, 24(2), 5–55. Murphy, S. (2013). The relevance of subsequent agreement and subsequent practice for the interpretation of treaties. In G. Nolte (Ed.), Treaties and subsequent practice (pp. 82–94). Oxford: OUP. Mutua, M. (2000). What is TWAIL? Proceedings of the 94th Annual Meeting of the American Society of International Law, 31–39. Otto, D. (1996). Subalternity and international law: The problems of global community and the incommensurability of difference. Social & Legal Studies, 5(3), 337–364. Otto, D. (1998/1999). Postcolonialism and law? Third World Legal Studies, 15, vii–xviii. Pauwelyn, J. (2003). Conflict of norms in public international law: How WTO law relates to other rules of international law. Cambridge: CUP. Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making. Journal of Personality and Social Psychology, 51(2), 242–258. Postema, G. (1994). Implicit law. Law and Philosophy, 13(3), 361–387. Postema, G. (2008). Conformity, custom and congruence: Rethinking the efficacy of law. In M. Kramer (Ed.), The legacy of H.L.A. Hart: Legal, political, and moral philosophy (pp. 45–65). Oxford: OUP. Rajagopal, B. (2006). Counter-hegemonic international law: Rethinking human rights and development as a third world strategy. Third World Quarterly, 27(5), 767–783. Raz, J. (1994). Ethics in the public domain. Essays on the morality of law and politics. Oxford: OUP. Reus Smit, C. (1997). The constitutional structure of international society and the nature of fundamental institutions. International Organization, 51(4), 555–589. Reus-Smit, C. (Ed.). (2004). The politics of international law. Cambridge: CUP. Said, E. W. (1978). Orientalism. London: Routledge & Paul. Schlag, P. (1988/1989). Missing pieces: A cognitive approach to law. Texas Law Review, 67(6), 1195–1250. Schwarzenberger, G. (1967). A manual of international law. London: Stevens. Simmons, B. A., & Steinberg, R. (Eds.). (2007). International law and international relations. Cambridge: CUP. Simon, D. (1998). A psychological model of judicial decision-making. Rutgers Law Journal, 30(1), 1–142. Skouteris, T. (1997). Fin de NAIL: New approaches to international law and its impact on contemporary international legal scholarship. Leiden Journal of International Law, 10(3), 415–420. Suchman, M. C. (1997). On beyond interest: Rational, normative and cognitive perspectives in the social scientific study of law. Wisconsin Law Review, 72(3), 475–477. Teubner, G. (1988a). Introduction to autopoietic law. In G. Teubner (Ed.), Autopoietic law: A new approach to law and society (pp. 1–12). Berlin: De Gruyter. Teubner, G. (1988b). Evolution of autopoietic law. In G. Teubner (Ed.), Autopoietic law: A new approach to law and society (pp. 217–241). Berlin: De Gruyter. Teubner, G. (1998). Legal irritants: Good Faith in British law or how unifying law ends up in new divergences. Modern Law Review, 61(1), 11–32.

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Vagts, D. F. (2001). Hegemonic international law. American Journal of International Law, 95(4), 843–848. von Savigny, F. (1840). System des heutigen Römischen Rechts. Berlin: Veit. Waldron, J. (2008). The concept and the rule of law. Georgia Law Review, 43(1), 1–61. Waltz, K. (1979). Theory of international politics. Reading: Addison-Wesley. Wendt, A. (1992). Anarchy is what states make of it: The social construction of power politics. International Organization, 46(2), 391–425. Wendt, A. (2001). Social theory of international politics. Cambridge: CUP. Winter, S. L. (1989). Transcendental nonsense, metaphoric reasoning, and the cognitive stakes for law. University of Pennsylvania Law Review, 137(4), 1105–1237.

Theresa Reinold is Junior Professor of Global and Transnational Cooperation Research at Duisburg-Essen University (UDE), Germany. Before joining UDE, she was Assistant Professor of International Relations at Leiden University, the Netherlands.

Beyond Cynicism and Critique: International Law and the Possibility of Change Gabriel M. Lentner

Abstract In this chapter, I seek to map and analyse potential negative consequences of cynicism and critique in international law scholarship. Clearly, there is a lot to be cynical and critical about and many reasons for wanting to change the world. But I argue that for real change both discursive practices can have the unintended effect of contributing to the legitimation of the status quo. Using examples from international criminal law, I show how cynicism and critique are not productive as such. I also demonstrate, among other consequences, that the more one uncovers the hidden mechanisms and structures of power in international law, the fewer alternatives cynics as well as critics are able to identify, leading them to believe that reality— while lamentable—is still the best of all possible worlds. To overcome this fatalism, I call for imagining new strategies for change that go beyond existing categories of law and legal institutions. As an illustration, I present an alternative programme for international criminal law that focuses on removing the structural root causes of violence rather than mitigating only individual symptoms.

1 Introduction We have two choices. We can be pessimistic, give up, and help ensure that the worst will happen. Or we can be optimistic, grasp the opportunities that surely exist, and maybe make the world a better place. Not much of a choice.1

The author would like to thank Janne Nijman, Dana Burchardt and Linus Mührel for very valuable comments on earlier drafts of this chapter and Oleksandra Novikova for excellent research assistance. 1

Chomsky (2017), p. 196.

G. M. Lentner (*) Danube University Krems, Krems an der Donau, Austria Stanford University, Stanford, CA, USA © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_3

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G. M. Lentner Chomsky, Optimism over Despair

Cynics do not have to look far: critical international law has uncovered the ways in which the forces of colonialism and imperialism have been present in the international legal system from its foundation to the present. According to David Kennedy, it is not the cynical use of law by despots but experts, including legal scholars, who—subtly but surely—enable, reproduce, legalise and legitimise this international legal system.2 With such devastating inferences about not only the state of international law, but the role of legal experts in its reproduction, cynicism about the legal project altogether might be a natural response. What does not receive the same level of attention, however, is the effect of cynicism and critique for transformative change. I am driven by the intuition that cynicism about and critique of international law and its workings in scholarship inadvertently serves to stabilise and legitimise the status quo.3 In other words, I want to know how and why such damning conclusions and assessments are not able on their own to meaningfully change the very status quo of international law it so powerfully criticises. For this chapter, I depart from the premise that cynicism can result from critique. The latter is a necessary but insufficient condition for the former. All cynics are critical, but not all critics are cynical.4 I define cynicism with Peter Sloterdijk as follows: cynicism in his analysis is the dominant attitude of the contemporary West. This cynicism is not just scepticism, not just reservation about the virtuous motives of others. Rather, it is an ‘enlightened false consciousness’ that typically acts ‘against better knowledge’.5 In this modern sense, cynicism means acting against principles despite knowing better because of the conviction that the structure of the world somehow authorises, even demands, the abandonment of those principles.6 It should be clear that I refer to cynics and critics of international law here in a very impressionistic way, that is, in a more intuitive than empirical manner, based on impressions experienced throughout my personal engagement in international criminal law scholarship.7 What I am analysing here is not directed at specific individuals or groups but rather the unstated motivations, convictions or ideas that are in the air

2

Kennedy (2016), pp. 31–32. Schwöbel (2014), p. 8, already raised this issue in relation to critique of international criminal law asking ‘[i]n how far does an engaged critique (a dialectic between practice and theory) strengthen precisely those structures which it aims to unsettle?’ 4 Baloyra (1979), p. 994. 5 Sloterdijk (1987), pp. 5–6. For a discussion of the different concepts of cynicism, see Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume; and Hengameh Saberi, ‘Cynicism as a Modus of Political Agency: Can It Speak to International Law’, in this volume. 6 This is very well captured in Brecht’s Threepenny Opera: ‘Wir wären gut, anstatt so roh, / Doch die Verhältnisse, sie sind nicht so!’ (‘We’d like to be good instead of so mean, but the conditions just won’t allow it’.). 7 Christine Schwöbel uses a distinction within critics: ‘effectiveness critique’ on the one hand, dealing merely with the question of how to make the existing institutions more effective and ‘assumptions critique’ on the other hand, that seeks to question the underlying assumptions of the 3

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in the background of conversations in the field. My purpose is to highlight some overlooked potential consequences of cynicism and critique in international criminal law. I do so with the normative commitment of using evidence and reasoning to determine the most effective ways to benefit others (in this context the prevention of atrocity crimes).8 Against this backdrop, I argue in the following pages that we need, first, a belief in the possibility of change and, second, an alternative programme. Doing so, I commence with discussing the possibility of change within international criminal law (a field that involves high stakes and illustrates my points clearly). Next, I identify the perils of cynicism and critique and show how certain scholarly practices can result in the stabilisation of the status quo. What follows is a discussion of the limitations of legalism, as critics have offered discussions on how to challenge the status quo and a legalistic approach is one of the options. But when reforms are framed and perceived only in legal terms (legalism9) this creates its own sets of problems. Finally, I present an alternative programme for international criminal law that focuses on removing the structural root causes of violence rather than their individual symptoms. This will require a hard look at the limitations of legal scholarship in this regard.

2 The Possibility of Change For real change, we need to believe in its possibility. But we also need an alternative programme to reforms that merely treat symptoms and not the disease. With change I mean a transformation of material, immaterial and structural conditions towards a world that is less organised by domination of some people by others. The countless examples cynics and critics can offer in support of their fatalism do not mean that they are the only possibility in human history. In fact, history demonstrates that alternatives are possible. Consider the support of the current International Criminal Court without the direct control of the permanent five members of the UN Security Council (P5). According to the realist model, France and the UK, both members of the P5 would not have joined the International Criminal Court without UN Security Council control. However, this is not what has happened. Instead, the New Labour Party in the UK gave electoral promises about the EU and multilateralism including specific promises to support the idea of an International Criminal Court, which they

usefulness of institutions in the first place, see Schwöbel (2014), pp. 3–4. The arguments advanced here apply to both forms of critique. 8 MacAskill (2017), p. 2; Singer (2015), pp. 4–5. 9 I am here mostly influenced by Judith Shklar’s view on legalism as ideology, see Shklar (1986). See also Posner (2009), Hurd (2017). On the limitation of knowing due to differing social positions that generate variable constructions of reality and afford different perspectives on the world, see generally Alcoff (2007).

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had to fulfil after having won the election.10 This lead to UK support for the International Criminal Court, against great power logic. And with the UK supporting the International Criminal Court, France, the only state left going up against EU consensus, gave up resistance as well.11 From this, I want to offer a broader perspective on the possibility of change in international law and an alternative programme that departs from legalistic worldviews (and their related epistemic ignorance12 of alternative non-legal avenues for change). I aim to understand the structural reasons for the reproduction of the status quo of international affairs. But first it is important to understand how critical and cynical approaches may contribute to the status quo instead.

3 The Perils of Cynicism and Critique I identify three potential perils of cynicism and critique. First, I point out that neither cynicism nor critique is productive without offering alternatives (Sect. 3.1), to then caution against misdirected energy and effort into critique as such (Sect. 3.2). Finally, I tease out the inevitability narrative that seems to lie behind the limited alternatives to existing legal structures and institutions that international lawyers provide (Sect. 3.3).

3.1

Cynicism and Critique Are Not Productive as Such

Let us consider an example from/of international diplomacy. In a statement made in 2018 at the 17th Session of the Assembly of States Parties of the International Criminal Court, the UK mentioned sobering statistics: after nearly 20 years, and 1.5 billion euros spent, only three core crime convictions were secured.13 Implicit in this statement is a scepticism about whether that money was spent effectively. To cynics, the structural, political and practical limitations to the International Criminal Court’s success (few prosecutions mostly of non-state actors in African countries, lack of cooperation of states, no effective prosecutions against powerful states’ interests),14 are not at all surprising: they have always known that the International Criminal Court never really had a chance. Indeed, we do not have to

10

Rudolph (2017), pp. 89–112. Id. 12 Alcoff (2007). 13 https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-states-parties-17thsession. Accessed 30 April 2020. 14 See for an overview of the International Criminal Court’s problems, Guilfoyle (2019). On the problem of double standards at the International Criminal Court, see Lentner (2020). 11

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be experts in international criminal law to know this. We just have to turn to critical international law literature. For example, B.S. Chimni already noted in 2004 that powerful states are unlikely to be the subject of international criminal tribunals’ attention. He wrote: A North-South divide characterises the punishment of international criminal conduct. It is extremely unlikely that the leaders and armed personnel of Northern states would ever be dragged before the ICC. . . . On the other hand, ICTs may be used to (a) threaten third world leaders who dare to question and oppose hegemonic states; and (b) give a humane and cathartic dimension to the ravages of global capitalism for it does not involve attention to the international causes of internal conflicts in third world societies, whose manifestation in unspeakable violence is their real subject.15

The actions of states and the practice of the International Criminal Court to date are testament to this. The neo-colonial charge against the International Criminal Court for almost exclusively prosecuting African nationals is not that easy to refute. A certain bias towards the interests of former colonial powers is obvious when colonial crimes were excluded from the definition of crimes in the International Criminal Court’s Rome Statute. While in the earlier reports of the International Law Commission, its Special Rapporteur, Doudou Thiam, proposed crimes such as ‘colonial domination and other forms of alien domination’, these were not included in the subsequent preparatory work of the International Law Commission for what later would serve as the basis of the crimes included in the Rome Statute.16 That all successful trials before the International Criminal Court concerned African nationals, does not, therefore, come as a surprise.17 But has anything changed after this exercise of exposing these biases and practices? Several African states and others have threatened to leave the International Criminal Court in protest (Burundi and the Philippines eventually did), further limiting the jurisdictional reach of the court (or threatening it).18 It did result in prosecutorial actions to open preliminary examinations into situations outside Africa, but the lack of successes so far in terms of accountability suggests that not much has really changed.19 Even the latest success of former Sudanese president Al-Bashir being reportedly finally transferred to the International Criminal Court to stand trial just confirms the cynics’ and critics’ view that only deposed leaders and non-state actors will face accountability, which has more to do with domestic politics than the effectiveness of International Criminal Court involvement.20 But the point I am trying to make is that from uncovering these biases and lamentable practices, we 15

Chimni (2004), pp. 13–14. Doudou Thiam (Special Rapporteur), Third Report on the Draft Code of Offences against the Peace and Security of Mankind, UN Doc A/CN.4/387 (8 Apr 1985), paras. 157–162. 17 On the ICC’s actions in Africa, see Branch (2017). 18 https://www.un.org/africarenewal/magazine/may-july-2017/icc-beyond-threats-withdrawal. Accessed 30 April 2020. 19 See on the status of the preliminary examinations and investigations, https://www.icc-cpi.int/ pages/pe.aspx. Accessed 30 April 2020. 20 See generally on the ICC’s African dilemmas, Branch (2017). 16

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do not know what to change for the International Criminal Court to get more effective, or where else to spend the money invested in it. It is simply naïve to believe that the sheer gesture of exposing and demystifying power in international law’s workings will somehow dissipate its effects. Cynicism and critique are not productive as such; they can only be a first step towards identifying a problem. In the daily practice of international law, critique does not seem to have any significant impact. As Koskenniemi writes: Research serves practice by producing critical reflection and self-awareness in acting lawyers. But it fails to provide answers to problems on which practicing lawyers are requested to give advice. . . . Skepticism about the material determinacy of international law seems to prevent lawyers from making normative propositions.21

As a critique of critique, commentators have identified this problem and correctly find that deconstruction cannot and should not be an end in itself. According to this literature, critical scholars are largely unwilling to address the issue of reform or change — whether it is possible, and upon what basis it might take place. As such, they confine themselves to critiques of the system and its discursive structures, but fail to face the consequences of their work.22

While the reality of power politics and structural inequality in international relations often seem external to the work of legal experts, it is important to emphasise the responsibility for their work in this context, be it cynic, critic or mainstream. With David Kennedy and others, we also know that experts, including legal scholars, enable, reproduce, legalise and legitimise a status quo that is ‘terribly unjust, subject to crisis, environmentally unwise, everywhere politically and economically captured by the few, and yet somehow impossible for anyone to alter or escape’.23 Experts are responsible because they provide the context for decisions that are made—as regards the allocation of resources, for example. They provide the (socially constructed knowledge of) facts, interests and forces that are understood to impinge on a decision or those that need to be considered.24 Because this responsibility has been articulated by critics, it is implicitly understood to lie only with those ‘other’ experts of the ‘mainstream’. It is clear, however, that critics and cynics must confront the consequences of their work as well. It is their role in enabling, reproducing, legalising and legitimising the status quo that this chapter investigates.

21

Kennedy and Tennant (1994), p. 427 (comments made by Martti Koskenniemi). Jodoin and Lofts (2014), pp. 333–334. 23 Kennedy (2016), p. 32. 24 Id., p. 112. 22

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Critique as Diverting and Channelling Source?

A potential negative consequence of critique is perhaps difficult to quantify, but nevertheless real. Critical work and cynicism might channel resources and energy, including personal time and effort, in certain ways. Instead of grassroots organising and activism together with affected communities, for instance, individuals are attracted by prestigious appointments at international institutions, NGOs and universities along with high salaries and other perks. This might result in buying off those individuals who would otherwise be able to effect transformative change—or redirects resources away from other, more viable, projects. Stretched to its extreme, we might even question the role of legal education in general. It is worth asking, as Samuel Moyn did: What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?25

Might something similar be happening in international law academia? We might call this a ‘domestication’ of the humanitarian impulse that got many in the field interested in international law in the first place. By channelling this impulse into academic and legal-institutional work, it directs at least some professionals away from the people they purport to represent. This results in reinforcing ‘a global divide of wealth, mobility, information and access to audience’.26 Of course, this work is important, but it does become problematic if it remains the only means of change. And even if it is not the only means, we should question and investigate potential avenues how these efforts (personnel, time and money) could be more efficiently allocated.27

3.3

Cynicism and Critique Without Alternatives? The Inevitability Narrative

Another possible consequence of cynicism and critique is that they may actually contribute to a fatalist construction of our world. In fact, it seems the more one uncovers the hidden mechanisms and structures of power in international criminal law, the fewer alternatives cynics as well as critics are able to identify, leading them to believe that this reality—while lamentable—is still the best of all possible worlds. This dilemma has been very well captured by feminist literary critic Eva Kosofsky Sedgwick. As pointed out by Davina Cooper, her work on paranoid

25

Moyn (2018). Kennedy (2002), pp. 119–120. 27 These questions have, for example, motivated an entire movement of so-called effective altruists who seek to maximise their contribution to make other peoples’ lives better, see Singer (2015). 26

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reading and reparative reading, she takes issue with the tendency of many progressive and critical academics to engage in paranoid readings, ‘which persistently seek to uncover the socially damaging structure, effects, or unjust motivations underpinning even the most seemingly benign actions’. For those engaging with critical international law literature, this charge sounds familiar. Cooper continues: Of course, critique is important, as is a skeptical attitude toward the claims of the powerful and a readiness not to take everything at face value. At the same time, if everything is wrong, if yesterday and tomorrow are just like today, corrupted by politics’ relentless (if far from original) sin, investing energy in action to pursue a transformative politics seems pointless.28

This is perhaps best captured as a narrative of inevitability29 often taught in international law. For the mainstream (at least in the way it is often presented or implied in textbooks) what is inevitable is progress: a sense of an inevitable progressive development of international law appears in most of the stories we conventionally tell students about human rights, the UN system and the International Criminal Court.30 To stick with the example of international criminal justice, here the long arc of international criminal law history bends from victor’s justice at Nuremberg (or one could start with the cynicism of the Athenians in the Melian dialogue) over to UN Security Council’s justice at the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda to universal justice at the International Criminal Court.31 This historical development of international criminal law institutions is seen as a progressive development that constantly evolved in the inevitable direction of international justice. Because this trajectory is inevitable, there is not much room for seriously questioning existing practices: again, reinforcing the status quo.32 For cynics and critics, the inevitability is of an opposite nature: They see in institutions like the International Criminal Court just the embodiment of what Thrasymachus says in Plato’s Republic, that is that ‘everywhere justice is the same thing, the advantage of the stronger’.33 For them, the UN Security Council was established to institutionalise the outcome of the Second World War and perpetuate the permanent five members of the UN Security Council’s victory.34 Or worse still, some Marxist critics reject the legal project entirely. To them, ‘legal ideology is a 28

Cooper (2014), p. 217. On the ICC’s progress narrative, see Armenian (2016). 30 See Kennedy (2000), pp. 105–106. For challenging the latter, see Lentner (2018), pp. 10–31. An example of this in foreign policy is the unfulfilled promise of change during the Obama administration. Instead of transformational change of US foreign policy, Obama merely engaged in ‘modest reform under primacy and market liberalism, instead of the transformational change he promised, while rhapsodising about the arc of the moral universe. This . . . preclud[es] any reassessment of the fundamentals, which are fixed and sound, presupposing the status quo and history’s direction’, Porter (2020). 31 See also Schwöbel (2014), p. 12. 32 Challenging this narrative, see Lentner (2020). 33 Plato (1968), 339a, 16; Bass (2000), p. 9. 34 Kennedy (2016), p. 259. 29

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tool cynically wielded by the powerful to ensure submission by the powerless’.35 Confirmation is found in reading international law’s colonial history, for example:36 many efforts to change the status quo just results/result in another, more subtle way in which neo-colonial domination constitutes itself. The inevitable cynical conclusion is that yesterday’s international law is just as bad as today’s; any improvements are just distractions and all efforts in this regard makes you complacent in the reproduction of inequality and human suffering. With this as background knowledge, cynicism about and critique of international law and its workings in scholarship inadvertently serves to stabilise and legitimise the status quo further. It stabilises the status quo in that it is able to absorb contestation and critique of existing practices by offering something very powerful (at least if well and thoroughly done): good explanations and compelling evidence for those explanations (think of postcolonial critiques of international criminal law, third world perspectives of international law, and others): all of the injustice in the world, the hypocrisy, the hubris has a reason, a story, a cause and effect; it all makes sense now. This leaves many with a sense of fatalism and leads us to conclude that real change is simply impossible for the million reasons we have unearthed causing the status quo in the first place. All this contributes to a fatalist construction of our world the more one uncovers the hidden mechanisms and structures of power in international law. Underlying this is a specific political and historical thinking, or Zeitgeist, prevalent in many parts of the world. Yale-historian Timothy Snyder calls this ‘politics of inevitability’. Snyder writes that Americans and Europeans were guided through the new century by a tale about ‘the end of history,’ . . ., a sense that the future is just more of the present, that the laws of progress are known, that there are no alternatives, and therefore nothing really to be done.37

This comes very close to Sloterdijk’s definition of cynicism, with the difference that Snyder identifies a sense of natural progress.38 So, to me, cynicism and critique of international criminal law might have paradoxical consequences: cynics and critics may legitimise the status quo. Critics inadvertently legitimise the status quo when they cannot offer better alternatives.39 35

Sypnowich (2014). Anghie (2006), Anghie (2004) and Bowden (2005). 37 Snyder (2018), p. 7. 38 The idea that ‘humanity is moving in the direction of better and more perfect civilization, and that this progression can be witnessed through study of the history of civilization’ itself reaches back to enlightenment thinking, where it replaced religious interpretations of history, see Little (2017). 39 I do not seek to impose this as a requirement of critique. On this point I agree with political theorist Raymond Geuss when he writes about ‘the effort to impose the requirement of “positivity” or “constructiveness” on potential critics: you can’t criticise the police system, the system of labour law, the organisation of the health services, etc., unless you have a completely elaborated, positive alternative to propose. . . . to accept it is to allow the existing social formation to dictate the terms on which it can be criticised, and to allow it to impose a theoretically unwarranted burden of positive 36

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Consider the example of international criminal justice: failures of the International Criminal Court to stand up to political influence of powerful states (for example by not authorising investigations into possible war crimes committed by US forces in Afghanistan40) are viewed as disastrous but inevitable. This is often accompanied with an understanding that it was never realistic to expect the International Criminal Court to do otherwise. Other defenders invoke more egregious pasts or alternatives without an International Criminal Court where even the small accomplishments of the court to-date are non-existent. Through such reasoning existing practices become acceptable and the status quo is reinforced.

4 Change and the Danger of Legalism Having looked at potential perils of cynicism and critique, I now want to shed some light on another unacknowledged phenomenon in international law that helps explain resistance to change. What follows interrogates the limitations of a legalistic worldview in the context of change (Sect. 4.1), after which I discuss legalism’s bias in favour of treating the symptoms rather than the disease (Sect. 4.2). Only by overcoming these limitations are we able to introduce new imaginaries and possibilities of change.

4.1

Implications of a Legalistic Worldview

When critical scholars do address the issue of reform or change, there is a real risk of doing so only within existing (legal) categories and concepts. This is because, on a deeper level, critique is itself often confined to the categories and vocabularies of its object.41 Because categories and concepts provide the ‘mental architecture by which we understand the world’,42 new imaginaries, alternatives, and possibilities of change, are difficult to come up with. Hence, believing constructively and holistically in the possibility of change requires us to think beyond existing legal categories and processes. Legal thinking limits our ability to develop new imaginaries and alternatives.43 Showing how this is proof on any potential critic’. Geuss (2008), pp. 95–96. However, as a general attitude towards knowledge production, I do advocate investing resources into finding alternatives as part of any critical endeavour. 40 Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, Pre-Trial Chamber II, ICC-02/17-33 (12 Apr 2019). 41 Schlag (1989/90). 42 Ginsburg and Stephanopoulos (2017), p. 147. 43 d’Aspremont (2020) and Schlag (1989/90).

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so, I depart from two strands of research. First, I consider David Kennedy’s intuitions about the negative effects of the human rights movement for/on the situation on the ground? and influenced by these insights, the more recent study by political scientist Ian Hurd on the empire of international legalism. Second, I develop a counter strategy based on insights from sociolegal studies and disciplines other than law to offer concrete steps for an alternative programme. A core concern I have about the possibility of change in international law has been articulated by David Kennedy in the context of the human rights movement. There he criticised the ‘institutional and political hegemony’ of human rights that makes ‘other valuable, often more valuable, emancipatory strategies less valuable’.44 The human rights discourse (and the proposed solutions for almost any problem of human security45) has so dominated the imaginative space of emancipation that . . . human rights crowds out other ways of understanding harm and recompense. This is easiest to see when human rights attracts institutional energy and resources that would otherwise flow elsewhere.46

Here the law and culture approach provides interesting insights. This approach understands law as part of culture: ‘to understand how a culture is put together and operates, therefore, one cannot fail to consider law; to consider law, one cannot fail to see it as part of culture’.47 MacCormick, in following this approach, points to the fact that [w]here law is appealed to, all things are not considered. Rather, the law’s requirements (and, perhaps, enablements and permissions) are considered, and decision focuses on application of, or compliance with these requirements (etc.), or ‘norms’ more generally.48

By approaching issues from within law, ‘we are always in danger of allowing law to fill our entire vision’.49 Indeed, the situatedness of international legal knowledge producers and their resulting ‘epistemic ignorance’ only adds to that.50 In the field of international law and the issues it is concerned with, this is very true. No problem of an international dimension seems to be out of reach of legal framing. For environmental degradation we have international environmental law, for human suffering we have human rights, humanitarian law; for economic inequality we have economic law, etc. The political scientist Ian Hurd has further observed a general dominance of legal vernacular in legitimising and justifying policy decisions and actions of states, calling this the ‘empire of international legalism’.51 Under this

44

Kennedy (2002), p. 108. See e.g. Nowak (2015). 46 Kennedy (2002), p. 108. 47 Rosen (2006), pp. 4–5. 48 MacCormick (1995), p. 470; Veitch (2007), p. 77. Developing this idea further for the role of international law in international relations, see Hurd (2017). 49 Kahn (1999), pp. 138–139. In a similar vein, see d’Aspremont (2020), p. 10. 50 Alcoff (2007), p. 41 See also Lentner (2019). 51 Hurd (2017), pp. 129–138. 45

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view, law constrains, but it also empowers states unequally and maintains inequalities in the international system.52 Another result of the legalism of international affairs is that arguments are made based on the law, its requirements and categories rather than based on other normative systems such as humanitarianism, morality or ethics.53 That legalism influences our ability to find remedies for today’s problems. Turning suffering, inequality, environmental degradation, violence, etc. into legal categories and framing them in terms of international law has several potential problems, too. The human rights view of individual human emancipation, for example, is very narrow.54 It focuses solely on ‘what governments do to individuals, on participatory rather than economic or distributive issues, on legal, rather than social, religious, or other remedies’.55 Maybe prevalent social norms are much more important for people’s behaviours than legal rules. A legal lens makes it hard to capture such issues that are not easily rights claims for/of individuals, such as ‘collective problems, economic problems, problems of poverty or health’, and thus easy to overlook.56 The empire of international legalism has real distributional consequences as the human rights context illustrates. As David Kennedy concludes, ‘[h]umanitarian voices are increasingly powerful on the international stage—often providing the terms through which global power is exercised, wars planned and fought’. They decide now how billions of dollars are spent on court reform, judicial training and the ‘rule of law’, instead of dams, roads and schools, for example.57 The troubling part is that no one keeps track of the failures or the costs of any of the (certainly real) successes of legal projects as opposed to those other non-legal projects.58 International legalism may thus limit the options we are able to introduce in the political discourse to affect change. A powerful illustration of the implications of international legalism in international criminal law is the absence of any mechanism for the prevention of international crimes. Legalism seems to work on the assumption that accountability has a deterrent effect. As lawyers, we simply believe that law works. But whether this is true or not cannot be ascertained with the tools of legal methodology. Existing empirical work from other fields suggests that this is a complex question, where many other factors, beside law and legal institutions, play an important part.59 So of course, a court is part of a strategy to prevent the commission of crimes. But without any supportive institutions, such as a police force, and the very limited actual

52

Id., p. 129. Id., pp. 132–135. 54 Kennedy (2012), p. 24. 55 Id., p. 24. 56 Id. 57 Id., p. 20. 58 Id., p. 26. 59 Friedman (2016), pp. 97–138. 53

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enforcement of international criminal law, any significant deterrent effect of the International Criminal Court (‘prevention through accountability’) seems implausible when looking at empirical work on deterrence.60 And even if there was a link between accountability and deterrence, the fact that the International Criminal Court’s record of holding war criminals accountable is mixed at best (only three core crime convictions to date) makes it difficult to see how deterrence works in situations where accountability is a very remote threat. That the International Criminal Court catalyses domestic accountability through its interventions because of the principle of complementarity is also an area where empirical studies point to a rather disappointing record.61 No police force or enforcement mechanisms, and the absence of any role for the UN Security Council to use its coercive powers for the prevention of international crimes or even just the effective enforcement of international criminal law is, of course, symptomatic for this focus on accountability rather than prevention.62 As Michael Reisman correctly points out, this also has its historical roots in the Nuremberg trials. They set an ironic precedent. In each of those mass murders, little or no effort was made to prevent or arrest them; on the contrary, the preferred strategy has always been ‘Nurembergian’—to wait for the mass killings to play themselves out and then to establish criminal tribunals.63 And the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Ruanda/Rwanda have been established for purposes other than accountability, too. It was also an effort to absolve the international community of its own sins of inaction. Atrocities took place as the world looked on; the efforts that the Council and individual states made to prevent these atrocities were anaemic. The ICTY and ICTR were as much a way for the international community to pat itself on the back for a job well done as they were a way to ensure reconciliation and victim vindication.64

Viewed in this light, celebrating the tribunal’s (legal-institutional) success leaves a bitter taste.65

60 Generally, on prerequisites and factors for deterrence (that when applied to international criminal law does not easily suggest effective deterrence through international criminal law as it stands today) Friedman (2016), pp. 97–138. Doubting deterrent effects of international criminal law, specifically see Lentner (2018), p. 31; Hopgood (2013), p. 14; Tallgren (2002), p. 590; Vinjamuri (2010), pp. 205–206; Mohamed (2015), p. 1639. On the other hand, there are empirical studies that do suggest some effect on prevention of crimes, for an overview of existing studies, see Ford (2020). However, it is important to note the limitations of these empirical studies, as it is difficult to control for all variables that might better explain the phenomenon of reduced atrocity crimes being committed (so-called confounding variables). 61 Nouwen (2013). 62 Trying to fill that gap with a legal duty of states to prevent genocide, see Heieck (2018). 63 Reisman (2007–2009), p. 60. 64 Mohamed (2015), p. 1685. See also Bass (2000). 65 See for the general (polemic) critique of an unwarranted belief in the effectiveness of international courts based merely on their existence in Reisman (1993), p. 414 (‘This is all very discouraging for

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4.2

Can Legalism Only Treat Symptoms?

This leads me to a more general point about international legalism. International law appears to be ill-suited for dealing with causes. Perhaps it can only treat symptoms, not the disease. Robert Knox points to this effect when he writes that this is where legal argument proves too specific. Legal argument resolves specific ‘violations’, ‘disputes’, or ‘instances’, but it never questions the general structural logics that lurk beneath them, and so cannot fully eradicate the problems it addresses.66

In fact, [w]here causes are exposed, as at times is the case in international human rights law, the approach adopted in human rights law is largely hortatory, since the form of its international legal mechanism still offer few ways of redressing those structural impediments. Structural and causal accounts are increasingly considered in international human rights law, even if there is still too little it can do about it.67

This is the reason why I disagree with Martti Koskenniemi’s conviction that law also ‘offers a powerful vocabulary to challenge existing institutional practices and convictions and the way they are understood and implemented’.68 I disagree because not being able to escape that vocabulary and law’s categories, we are precisely not able to imagine better alternatives.69 In fact, a legal and professionalised vocabulary can even have negative effects ‘when it legitimates, explains away, apologizes for or simply distracts professional attention from injustice’.70 It is a convincing thesis that with legal worldviews, the wrong questions are being asked and the wrong results are being measured. In the Misery of International Law, the authors point out that [a]ll too often privatization, liberalization, and even macro stabilization have been treated as objectives of reform . . . But all too often no scorecard was kept on the number of individuals who were pushed into poverty, or the number of jobs destroyed versus those created, or on the increase in violence, or on the increase in the sense of insecurity or the feeling of powerlessness.71

the incurable judicial romantics who look to courts as a type of deus ex machina, ready to descend, upon the mere utterance of some juridical incantations, and, thanks to mysterious powers inherent in the law, to bring order and justice to the most untidy, even violent political situations. Many judicial romantics subconsciously transpose some of the powerful emotive affects of the symbol “court” in municipal systems, where they have been significant struts of public order, to radically different environments. This can be disappointing and even dangerous. A court, by itself, is only a college of people. Its powers in any setting derive from a political process, of which it is a part, and which enfranchises it.’). 66 Knox (2009), pp. 430–431. 67 Linarelli et al. (2018), pp. 20–21. 68 Koskenniemi (2019), p. 7. 69 Schlag (1989/90) and d’Aspremont (2020). 70 Kennedy (2000), p. 104. 71 See Stiglitz (2001), pp. xv–xvi.

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They add that [t]he dominant approach too often measures the wrong things, telling us that we are all better off, and selling the current world system not merely as the best there is but as all there really is. International law plays an integral role in this charade; it is not merely reflective of it and complicit in it, but constitutive of it.72

With the fragmentation and specialisation of international law even constructive criticism is often limited only to the symptoms of structural issues, not the structural issues themselves. International criminal law is, again, a prime example. By focusing solely on heinous acts of individuals and prosecuting their crimes, this is seen as a means to tackling and mitigating the commission of international crimes. But other issues are outside its field: what about environmental destruction as causes for violence? Or international economic relations producing structural violence in the Global South leading to atrocities? These issues would clearly be relevant, but they are not seen as part of international criminal law. Thus, fragmentation and specialisation narrow our field of vision and thus also our sense of possibility. Few international criminal law experts really understand the root causes for the outbreak of violence, nor are they able to assess the actual consequences of their institution’s work to people’s lives. This is where I depart from when developing an alternative programme.

5 An Alternative Programme I now look at the possibility of change within international law that is not blind to the existing power structures and I offer an alternative programme in the area of international criminal law that focuses on treating the disease instead of only its symptoms. From the outset, I want to emphasise that prosecution of individual perpetrators is important73 but cannot be the sole focus of international criminal law. International criminal law should be more attentive to structural violence and other root causes of violence culminating in atrocities in general, not only their individual outbreaks. Unfortunately, however, just as human rights law and the rest of international law, international criminal justice tends to treat only the tips of icebergs74 and symptoms. This is, in itself, certainly not an issue, as no one can reasonably expect the law to do much more. The problem is, however, that in practice legal solutions often dominate the discourse. In fact, law and legal institutions have colonised many other avenues for improving the status quo with the result of spending billions on courts, judicial

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Linarelli et al. (2018), p. 18. On the importance of individual prosecutions and actual enforcement of law see generally the empirical work on these questions, Friedman (2016). Punishment is a whole other issue, see Fassin (2018). 74 With respect to human rights law, see Kennedy (2002), p. 123. 73

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training and ‘rule of law’ injection instead of investing in education, social security and infrastructure.75 Furthermore, while structural issues and root causes of atrocity crimes have recently been acknowledged at the UN,76armed conflict, state and group terrorism and massacres gain much more public attention than the structural causes for these very outbreaks. Although, ‘it is important to note that far greater damage and death result from the more habitually accepted conditions of inequality and injustice in the form of structural violence’.77 Only acting after visible violence occurred is not only ineffective but costly.78 Thus, instead of focusing on punishment and accountability for atrocities already committed, what if we invest those resources into identifying and mitigating their root causes? Among those root causes is structural violence, that is not addressed by international criminal law. Structural violence, which refers to the avoidable limitations society places on groups of people that constrain them from achieving the quality of life that would have otherwise been possible. These limitations could be political, economic, religious, cultural, or legal in nature and usually originate in institutions that have authority over particular subjects.79

Unlike the more visible forms of violence ‘structural violence occurs through economically, politically, or culturally driven processes working together to limit subjects from achieving full quality of life’.80 Structural violence ‘directly illustrates a power system wherein social structures or institutions cause harm to people in a way that results in maldevelopment or deprivation’.81 The causation of which was wholly inadequately addressed by international law, when the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda had a chance to consider these questions. Nowhere was the international community’s role in creating situations of atrocity addressed.82 This situation bears resemblance with the human rights context:

75

Cf. Kennedy (2012), p. 20. See e.g. the Report of the UN Secretary-General, Implementing the Responsibility to Protect: Accountability for Prevention, UN Doc A/71/1016-S/2017/556 (10 Aug 2017), paras. 13, 20, 24. 77 Lee (2016), p. 113. 78 Id., p. 113. 79 Id., p. 110; Farmer (2004), p. 307. See also Galtung (1969), pp. 167–191. Galtung thought that structural violence could be avoided when people become conscious of the imposition of limitations by social structures. For similar arguments on the connection between structural violence and poverty, see Pogge (2008). 80 Lee (2016), p. 110. 81 Id., p. 110. 82 Mohamed (2015), p. 1685. 76

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[E]ven where victims are recompensed or violations avoided, the distributions of power and wealth that produced the violation may well come to seem more legitimate as they seek other avenues of expression.83

Adequate structural prevention could take many forms as it aims at removing root causes.84 The literature on this pushes for a broadening of this concept to not only consider root causes, but also an understanding of the dynamic interaction between the risks posed by root causes and the locally-based mitigation factors that foster resilience to such risks.85 The most commonly cited structural explanation for civil war, for example, is poverty and connected to it inequality. But that does not mean that these factors alone mechanically or automatically cause violent conflict. ‘[W]hat matters is the legitimacy of the processes that create inequality’.86 Comparative genocide studies have identified a range of root causes and risk factors of social, political and economic dimensions. These include identity-based division; state-based discrimination; past atrocities; issues of governance, including widespread human rights violations, limited rule of law, absence of or weak democracy; and finally, low integration into the world economy, and inequality of wealth and opportunity.87

Examples of risks and sources of resilience are described in a case study involving Zambia.88 To mitigate those risks, legal expertise is of very little help. Instead, examples of mitigation are rise in the level of democracy, inclusive leadership, sustained economic growth,89 and [l]ocal and national sources of resilience, which have the capacity to mitigate risk. These include policies that promote social cohesion, inclusive leadership prior to transition, strong rule of law, diffusion of power, and policies promoting horizontal equality.90

In short, more research needs to be done in this area, but it is clear that legal scholars should play only a very limited role in this, except for the realisation that without pointing to existing alternatives beyond law, legal expertise may do more to serve the status quo than to challenge it. My bottom line is this: what if instead of spending €1.5 billion on the International Criminal Court, we fund a transdisciplinary research project to find the root causes for atrocity crimes and how they can be mitigated?

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Kennedy (2002), p. 118. McLoughlin (2014), p. 413. 85 Id., pp. 409–413. 86 Uvin (2010), pp. 170–175. 87 McLoughlin (2014), pp. 422–423. 88 McLoughlin (2014), pp. 433–439. 89 McLoughlin (2014), pp. 424–425. 90 McLoughlin (2015), p. 29. 84

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6 Conclusion This is a wakeup call for legal academics that either succumbed to passive cynicism in the face of human suffering or the well-intentioned critics who were not seeing the consequences of their work. International legal scholarship is part of the social construction of reality, so a cynical view of the state of affairs will reinforce that state of affairs. I also attempted to show that without offering alternatives, critique of the current international system risks stabilising and legitimising the status quo, as well. It is alluring and tempting to view oneself as making a difference by uncovering power structures that cause inequality. But that recognition should only be a first step, followed by investigations into how meaningful change can be brought about. I therefore advocate interdisciplinary and transdisciplinary platforms for scholars and practitioners as well as people outside these circles to collaborate and work together toward this goal. If critique is isolated from such a process and unable to offer alternatives, it might end up being cynically used to do the opposite. It is a call for modesty. Law is primarily conservative in the sense of preserving existing power structures. It is not a very suitable tool for change. I have tried to show this by illustrating our limited understanding of root causes and law’s inability to address them effectively. International law and legal expertise can be part of a solution, but in most cases, they will not be leading the way. What we as legal scholars can do is bring to the fore the structural dynamics reproduced in law and its institutions, from where other experts can identify ways to change the world for the better. In the end, this is a call for action: we must produce ‘knowledge potent for constructing worlds less organised by axes of domination’.91 Doing so I suggest to follow Sally Haslinger, who has very convincingly made the case that ‘we need to try to do justice in our theorizing to both agents and social structures, and also to the complex ways in which they are intimately related, within material reality’.92 What should not be forgotten is that—to paraphrase Karl Marx—cynics and critics have often deconstructed the world, in various ways: the point, however, is to change it.93 And as Chomsky rightly put it: the possibility of change surely does exist.

References Alcoff, L. M. (2007). Epistemology of ignorance: Three types. In S. Shannon & T. Nancy (Eds.), Race and epistemologies of ignorance: Three types (pp. 39–57). New York: State University of New York Press.

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Haraway (1988). Manne (2018), p. 32. See further Haslanger (2012), pp. 11, 411–418. 93 Karl Marx, Theses on Feuerbach. 92

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Anghie, A. (2004). Imperialism, sovereignty and the making of international law. Cambridge: CUP. Anghie, A. (2006). The evolution of international law: Colonial and postcolonial realities. Third World Quarterly, 27(5), 739–753. Armenian, A. V. (2016). Selectivity in international criminal law: An assessment of the ‘Progress narrative’. International Criminal Law Review, 16(4), 642–672. Baloyra, E. A. (1979). Criticism, cynicism, and political evaluation: A Venezuelan example. American Political Science Review, 73(4), 987–1002. Bass, G. J. (2000). Stay the hand of vengeance. The politics of war crimes tribunals. Princeton: Princeton University Press. Bowden, B. (2005). The colonial origins of international law. European expansion and the classical standard of civilization. Journal of the History of International Law, 7(1), 1–23. Branch, A. (2017). Dominic Ongwen on trial: The ICC’s African dilemmas. International Journal of Transitional Justice, 11(1), 30–49. Chimni, B. S. (2004). International institutions today: An imperial global state in the making. European Journal of International Law, 15(1), 1–37. Chomsky, N. (2017). Optimism over Despair. On capitalism, empire, and social change. Chicago: Haymarket Books. Cooper, D. (2014). Everyday utopias the conceptual life of promising spaces. Durham: Duke University Press. d’Aspremont, J. (2020). International legal methods: Working for a tragic and cynical routine. In R. Deplano & N. Tsagourias (Eds.), Handbook on research methods in international law. Cheltenham: Elgar. (in press). Farmer, P. (2004). An anthropology of structural violence. Current Anthropology, 45(3), 305–325. Fassin, D. (2018). Der Wille zum Strafen. Frankfurt am Main: Suhrkamp. Ford, S. (2020). Can the International Criminal Court Succeed? An analysis of the empirical evidence related to violence prevention. Loyola of Los Angeles International and Comparative Law Review, forthcoming. Friedman, L. M. (2016). Impact. How law affects behavior. Cambridge: Harvard University Press. Galtung, J. (1969). Violence, peace, and peace research. Journal of Peace Research, 6(3), 167–191. Ginsburg, T., & Stephanopoulos, N. (2017). The concepts of law. University of Chicago Law Review, 84(1), 147–175. Geuss, R. (2008). Philosophy and real politics. Princeton: Princeton University Press. Guilfoyle, D. (2019). This Is Not Fine: The International Criminal Court in Trouble. EJIL: Talk! Retrieved 30 April 2020, from http://www.ejiltalk.org/part-i-this-is-not-fine-the-internationalcriminal-court-in-trouble/ Haraway, D. (1988). Situated knowledges: The science question in feminism and the privilege of partial perspective. Feminist Studies, 14(3), 575–599. Haslanger, S. A. (2012). Resisting reality: Social construction and social critique. Oxford: OUP. Heieck, J. (2018). A duty to prevent genocide. Due Diligence obligations among the P5. Cheltenham: Edward Elgar. Hopgood, S. (2013). The endtimes of human rights. Ithaca: Cornell University Press. Hurd, I. (2017). How to do things with international law. Princeton: Princeton University Press. Jodoin, S., & Lofts, K. (2014). What’s critical about critical international law? In P. Singh & B. Mayer (Eds.), Critical international law (pp. 326–346). Oxford: OUP. Kahn, P. W. (1999). The cultural study of law. Reconstructing legal scholarship. Chicago: University of Chicago Press. Kennedy D (2000) What is new thinking in international law? Proceedings of the Annual Meeting of the American Society of International Law, 94, 104–125. Kennedy, D. (2002). The international human rights movement: Part of the problem? Harvard Human Rights Journal, 15, 99–125. Kennedy, D. (2012). The international human rights regime: Still part of the problem? In R. Dickinson, E. Katselli, C. Murray, & O. W. Pedersen (Eds.), Examining critical perspective on human rights (pp. 19–34). Cambridge: CUP.

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Kennedy, D. (2016). A world of struggle. Oxford: OUP. Kennedy, D., & Tennant, C. (1994). New approaches to international law: A bibliography. Harvard International Law Journal, 35(2), 417–460. Knox, R. (2009). Marxism, international law, and political strategy. Leiden Journal of International Law, 22(3), 413–436. Koskenniemi, M. (2019). International law and the far right: Reflections on law and cynicism. The Hague: TMC Asser Press. Lee, B. X. (2016). Causes and cures IX: Consequences of violence. Aggression and Violent Behavior, 30, 110–114. Lentner, G. (2018). The UN security council and the international criminal court. The referral mechanism in theory and practice. Cheltenham: Edward Elgar. Lentner, G. (2019). Law, language, and power: English and the production of ignorance in international law. International Journal of Language & Law, 8, 50–66. Lentner, G. (2020). The lasting legacy of double standards: The international criminal court and the UN security council referral mechanism. International Criminal Law Review, 20(2), 251–284. Linarelli, J., Salomon, M. E., & Sornarajah, M. (2018). The misery of international law. Confrontations with injustice in the global economy. Oxford: OUP. Little, D. (2017). Philosophy of history. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy. Retrieved 30 April 2020, from https://plato.stanford.edu/archives/sum2017/ entries/history/ MacAskill, W. (2017). Effective altruism: Introduction. Essays in Philosophy, 18(1), 1–5. MacCormick, N. (1995). Argumentation and interpretation in law. Argumentation, 9(3), 467. Manne, K. (2018). Down Girl. The logic of misogyny. Oxford: OUP. McLoughlin, S. (2014). Rethinking the structural prevention of mass atrocities. Global Responsibility to Protect, 6(4), 407–429. McLoughlin, S. (2015). Understanding mass atrocity prevention during periods of democratic transition. Politics and Governance, 3(3), 27–41. Mohamed, S. (2014/2015). Deviance, aspiration, and the stories we tell: Reconciling mass atrocity and the criminal law. Yale Law Journal, 124(5), 1628–1689. Moyn, S. (2018). Law Schools are bad for democracy. The Chronicle Review. Retrieved 30 April 2020, from https://www.chronicle.com/article/Law-Schools-Are-Bad-for/245334 Nouwen, S. M. H. (2013). Complementarity in the line of fire. The catalysing effect of the international criminal court in Uganda and Sudan. Cambridge: CUP. Nowak, M. (2015). Menschenrechte — Eine Antwort auf die wachsende ökonomische Ungleichheit. Vienna: Konturen. Pogge, T. (2008). World poverty and human rights. Cosmopolitan responsibilities and reforms (2nd ed.). Cambridge: Polity. Porter, P. (2020). Speaking Truth to Power. The Critic. Retrieved 30 April 2020, from https:// thecritic.co.uk/issues/february-2020/speaking-truth-to-power/ Posner, E. A. (2009). The perils of global legalism. Chicago: Chicago University Press. Reisman, W. M. (1993). The constitutional crisis in the United Nations. In R. J. Dupuy (Ed.), Le Développement du Rôle du Conseil de Sécurité. Peace-Keeping and Peace-Building. Leiden: Martinus Nijhoff. Reisman, W. M. (2007–2009). Acting before Victims become Victims: Preventing and Arresting Mass Murder. Case Western Reserve Journal of International Law, 40(1–2), 57–85. Rosen, L. (2006). Law as culture: An invitation. Princeton: Princeton University Press. Rudolph, C. (2017). Power and principle. The politics of international criminal courts. Ithaca: Cornell University Press. Schlag, P. (1989/90). ‘Le hors de Texte, C’est Moi’: The politics of form and the domestication of deconstruction. Cardozo Law Review, 11(5–6), 1631–1674. Schwöbel, C. E. J. (2014). Introduction. In C. E. J. Schwöbel (Ed.), Critical approaches to international criminal law. An introduction. New York: Routledge.

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Shklar, J. N. (1986). Legalism: Law, morals, and political trials. Cambridge: Harvard University Press. Singer, P. (2015). The most good you can do. How effective altruism is changing ideas about living ethically. New Haven: Yale University Press. Sloterdijk, P. (1987). Critique of cynical reason. Minneapolis: University of Minnesota Press. Snyder, T. (2018). The road to unfreedom. Russia, Europe, America. New York: Tim Duggan Books. Stiglitz, J. (2001). Foreword. In K. Polanyi (Ed.), The great transformation: The political and economic origins of our time (pp. xv–xvi). Boston: Beacon Press. Sypnowich, C. (2014). Law and ideology. In E. N. Z. Edward (Ed.), The Stanford Encyclopedia of Philosophy. Retrieved 30 April 2020, from https://plato.stanford.edu/archives/win2014/entries/ law-ideology/ Tallgren, I. (2002). The sensibility and sense of international criminal law. European Journal of International Law, 13(3), 561–595. Uvin, P. (2010). Structural causes, development co-operation and conflict prevention in Burundi and Rwanda. Conflict, Security & Development, 10(1), 161–179. Veitch, S. (2007). Law and irresponsibility. On the legitimation of human suffering. New York: Routledge. Vinjamuri, L. (2010). Deterrence, democracy, and the pursuit of international justice. Ethics & International Affairs, 24(2), 191–211.

Gabriel M. Lentner is Assistant Professor of International Law at Danube University Krems, Austria, and TTLF Fellow at Stanford University, USA. He was a Visiting Scholar at Harvard Law School, USA, where parts of the manuscript were written.

Cynicism as a Modus of Political Agency: Can It Speak to International Law? Hengameh Saberi

Abstract This chapter is a brief tour through the philosophical journey of cynicism as a critical ethos and modus of political agency. Against colloquial and psychological uses, all with a crippling effect, it seeks to remind of the best potential of a philosophical cynical temperament for a sense of empowered agency by revisiting its travels from ancient Athens to our time. With that history in sight, it will then in a preliminary and experimental fashion imagine some possible avenues through which international law can begin to appreciate a cynical orientation as a force for good rather than an enemy to deny, dismiss or psychologise in paralysed surrender. Understanding the history of a cynical orientation as a mode of active engagement through social critique has one eye on the present and one on the future. It is to direct us toward a meaningful way to channel in the individual and collective cynical reservoir for claiming agency against exclusionary social structures. The first, essential step toward developing that temperament however, is to have clarity about cynicism’s distinctive philosophical history, filtering out destructive effects of resignation as a sensibility, apathy, disillusionment, and despair over one’s individual alienation and social nihilism. Modest but unavoidable, it is this very first step that motivates the present chapter.

1 Introduction Too much faith is the worst ally. When you believe in something literally, through your faith you’ll turn it into something absurd. One who is a genuine adherent, if you like, of some political outlook, never takes its sophistries seriously, but only its practical aims, which are concealed beneath these sophistries. Political rhetoric and sophistries do not exist, after all, in order that they be believed; rather, they have to serve as a common and agreed upon alibi. Foolish people who take them in earnest sooner or later discover inconsistencies in them,

H. Saberi (*) Osgoode Hall Law School, York University, Toronto, ON, Canada © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_4

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H. Saberi begin to protest, and finish finally and infamously as heretics and apostates. No, too much faith never brings anything good. . . Milan Kundera, Laughable Loves I warn you, my cynicism is so strong that it borders on optimism. Scott Davis Howard, Three Days and Two Nights

What is cynicism in and about international law that makes it worthy of scholarly attention? Is it not the case that a shadow of uncertainty, mostly manifested in hypochondriac snivels from within but also cast as antagonism from without, has persistently followed the life of international law for more than a century? Certainly, there is something to be said about the expansion of various forms of populism and their potential threat to international law’s stature in the present time. Besides, the particularities of virtual-space reality, novel technological incursions in both private and public spheres, the plausibility of algorithmic warfare, food and water insecurity, and so forth defy overarching diagnostic and remedial theories, armchair ambitions notwithstanding. As serious threats, they feed on and, in fact, in variegated ways deepen the gap between ‘haves and have nots’, ‘cans and cannots’ and between ‘the insiders and the outsiders’. But all things considered, unless overtaken by historical amnesia or a desire for self-aggrandisement, do we have sufficient reason to count such threats as catalysts propelling a sense of urgency to engage with cynicism about the role of law in international politics in this particular time in response to our contemporary problems? This question becomes more meaningful when considering that prior to the present volume, there was no more than one single scholarly reflection on the subject in international legal literature as a whole.1 If the global legal order is under siege— uniquely or not—a conscious re-orientation of agency and structure that can potentially direct toward moral and political empowerment is in demand. Such timeless empowerment, as will be explored, may not always have been a progeny of simple and pure faith, whatever its origin. Paradoxical on its face, Periclean culture indeed saw it in its opposite, cynicism. And so might we. However unique or comparable today’s challenges facing international law— including the fashionable concern with populism or new right-wing movements— might be, there is great value in exploring the role of cynicism in any self-assured, aspiring, or evolving democratic order. Cynicism, on its face inimical to some common expectations in a democracy such as trust and stability, comes with an underappreciated philosophical trajectory that has historically served to advance social critique aiming at betterment of democracy. The historical ebbs and flows of cynicism’s journey in philosophy and social critique cast doubt on the exceptionalism of current agnostic threats to democracy as a particularly unique occasion compelling a better understanding of cynicism in and about international law.

1 To my knowledge, until now the only published work directly addressing the question has been by Koskenniemi (2017).

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Neither cynicism’s challenge to conventions throughout history, nor the various garbs it has put on to develop social critique are novel. Nor do we have good reasons to always treat cynicism as destructive or pathological. But our moment like many others foregone is witnessing anxiety about the relevance of law in international politics and global economy, and perhaps self-conscious of its own cynical outlook, seeks to justify, reject, or explain it away as a pathology. Against such dismissive and fearful reactions, this chapter looks under the appearance of cynicism’s negation and urges a historical understanding of its development as a particular and engaged modus of political agency. This trajectory reveals the sharp critical edge of cynicism as a philosophical attitude or temperament rather than a mere psychological state of the mind. Looking beyond the urgency of the time—real or imaginary—as well as cynicism’s popular, colloquial usage, we had better explore a more enduring view of it in (international) politics and social life that need not feed on seasonal particularities. Such an enduring reservoir has travelled from ancient Athens to our time in different garbs and formulations inspiring social critique. To appreciate cynicism’s enabling critical force and potential as a political ethos throughout the time, we ought to take the concept more seriously than a psychologically crippling state of being would allow. This alternative—cynicism as a philosophical attitude with promising potential for meaningful political engagement—however, has not necessarily offered a social recipe or practical blueprint to its followers throughout its history. Nor can we expect it to be any different this time around. From ancient Cynicism2 to post-Renaissance and postmodern adaptations, cynicism has experienced various incarnations with inevitable fault lines. But these fractures do not have to confront us with a simple, binary choice between the ancient and the modern or the authentic and the inauthentic because, just like our predecessors on this path who have negotiated their language of revolt and critique in various cynical dispositions, we would have to make our own cynical cocktail with the hindsight of history if we were to follow this path in the hope of keeping the possibilities of radical politics alive. We can concoct a version of cynicism with radical energy as taught by the best of this history however, only when we filter out the destructive effects of resignation as a sensibility, apathy, disillusionment, despair over one’s individual alienation and social nihilism, and a superior sense of control over the authentic in politics—all unhappy children of cynicism’s marriage to postmodernism.3 Understanding the history of a cynical orientation as a mode of active engagement through social critique has one eye on the present and one on the future. It is to direct us toward a meaningful way to channel in the individual and collective cynical reservoir for claiming agency against exclusionary social structures. This chapter has

2 In line with conventional use, Cynicism is capitalised throughout wherever the reference is specifically to the ancient form. As it will become clear, since the kind of cynical orientation entertained here does not build on a simple ancient-versus-modern binary distinction, it does not have to be capitalised even when it is closer to the ancient tradition in content. 3 It is in that refined state that cynicism, to use an aphorism, ‘borders on optimism’. Howard (2016).

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a much more modest goal, however. It revisits a few moments of cynicism’s journey to suggest that its potential, in general and no less in international law, lies in a philosophical rather than a psychological or colloquial stance. Our success in developing a cynical orientation with positive potential is predicated on an essential first step of clarity about the concept’s distinctive history and distinction from other sources of agnosticism. It is that preliminary but essential step that will guide the rest of the present chapter. The next section will distinguish cynicism from more familiar sources of negation in international law such as various forms of scepticism that, beyond questioning the latter’s relevance, effectiveness or very being, bear no more resemblance to cynicism than plain faith may do. More important than this distinction, arguably evident in nature, is to discriminate cynicism as a philosophical sensibility from what it has already been taken to stand for in international law—a mere psychological state. The third and central section will then attempt to portray what cynicism has historically been by selectively revisiting cynicism’s ebbs and flows from Diogenes to Foucault, offering a snapshot of our reservoir of tradition and its malleability as an outlook to the world. Here is where the distinction between different treatments of the experience of alienation—that flagship experience of the cynic—will become clear. Some revel in its liberatory effect and others resign to its pathological lethargy and despair. It is only the former kind that could motivate political agency. With this history in hand, the final section, in a rather experimental fashion and borrowing from the recent reincarnation of cynicism’s best potential for active engagement in political theory, imagines some possible avenues through which international law can begin to appreciate a cynical orientation as a force for good rather than an enemy to deny, dismiss or psychologise in paralysed surrender. This will remain a sketch, only outlining a preliminary idea of how cynicism’s challenge to certitude of trust, adoption of contingency instead, and tactical or opportunistic coping—all legacies of cynicism’s philosophical journey—could become a weapon of engagement rather than a cause for resignation. In a field such as international law where cynicism has run free on colloquial terms invariably with negative implications, a historical appreciation of its critical force and enabling re-emergence in neighbouring disciplines is a first step towards that manifestation.

2 What Cynicism Is Not or Should Not Be What is particularly fresh in a cynical outlook to international law, a field historically plagued by sharp antagonism? An exercise in discrimination between various forms of antagonism might at best bear some analytical value, and at worst amount to no more than pedantic hair-splitting. Evidently, ontological doubts start from and operate on very different assumptions from epistemic scepticism. But the net outcome of their blow to international law’s image and relevance does not much differ from other, more sophisticated epistemic challenges. What matters here is that with familiar ontological, epistemic and normative critiques, and other sources of

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dismissal in international law, cynicism shares a similar intransigent critical edge merely so far as it challenges accepted forms of social conventions. But their common grounds end right at that point, making any resemblance as preposterous and vacant as it is superficial. At the risk of wearying the seasoned reader, we can quickly recall those welltrodden paths of negation that critics with varying degrees of success have taken to demand of international law what they have thought it ought to be or do. Austinians,4 IR realists,5 and the neo-conservatists of the political right6 have all been concerned, in different ways, with questions of ontology. The challenge to international law’s very existence—by the realists and the right—should not be taken lightly, but the apparent force of such arguments alone does not afford them nearly as much argumentative weight or philosophical sophistication as some epistemological critiques possess. It is the force of epistemic scepticism, after all, that led the New Haven Jurisprudence to discount what it called old, metaphysical jurisprudence in favour of a complex, positive program of empiricism;7 (a programme whose ultimate fate of failure is of no concern here). The same epistemic scepticism situated in a postmodern orientation resulted in calls for epistemological renewal in some critical corners such as the ones inspired by (post)structuralism. Their most sophisticated adherents call for heterodox experimentations with no closure in sight.8 Other critical movements, whose quarrel is with international law’s pedigree and legitimacy, oppose the tradition and current structure of international law, but are not necessarily, or not at all, epistemic sceptics. They instead advocate for new sources of knowledge and authority.9 There might be more contenders to negation, disillusion or disenchantment that could putatively align with cynicism if we were to satisfy ourselves with a colloquial understanding of a cynical sensibility that encompasses introspective darkness, nihilism, quietist relativism, anarchic disorder, manipulation and hypocrisy of insiders and resignation of outsiders, and an overall sense of estrangement and rejection of the world that constantly fails to live up to some lofty, predetermined metaphysical or moral ideals. Yet this is precisely the peril we should avoid. To be sure, cynicism has shared a comfortable corner with all such sensibilities mostly in its colloquial animation, but at times in some versions of its philosophical incarnation too while traveling from the Greeks to the present. It is nevertheless paramount 4

Austin (1863). Krasner (2002), p. 42; Mearsheimer (1994), p. 3. 6 Goldsmith and Posner (2005). Characterising this book and its authors as examples of right-wing political thought is contestable on several levels. It characterises the political right in a very broad (if not loose) sense; it lacks discrimination between the two authors’ at times different political perspectives; and it takes a theoretically-meagre application of rational choice models to represent the political right. For the purposes of the argument, the popularity of the book should nevertheless suffice to justify the choice. 7 Lasswell and McDougal (1992). 8 Kennedy (2017). 9 Eslava (2019). 5

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to move beyond the colloquial usage into the philosophical territory and separate the wheat from the chaff. But before that tour d’horizon in the next section, let us briefly see in what sense cynicism is, or ought to be seen as, a philosophical rather than a mere psychological sensibility. In the sole existing account of cynicism in international law, Martti Koskenniemi describes cynicism as the mirror in which commitment is bound to look at itself in the international legal agent’s household.10 For the international lawyer, professional commitment is neither faith nor certainty, because legal practice is not theology and legal propositions do not carry truth-values as such either.11 It is rather a defence against falling into the abyss of contradiction between private and public selves by combining one’s private passion with public duty into a meaningful identity.12 The spirit of going against ‘one’s own (immediate) [private] interests’, the integrity with which the lawyer observes the rule of law and his or her public faith in the function of law trump ‘competing loyalties and normative demands’.13 This kind of commitment is to save the professional from the malady of ‘personal alienation and social nihilism’.14 But it is certainly not rational—not necessarily irrational but non-rational, demanding courage, in fact something akin to heroism of the international lawyer to forge ahead with ideals which may fail or materialise but nonetheless become no more than a disappointment.15 When ideals and goals are frustrated—a familiar fate in the international law marketplace, so does the force of commitment behind them. That is precisely when cynicism is born. In fact, it takes much less for cynicism to rear high over commitment. In the everyday balancing of rules and policies, clouds of doubt and ambivalence never cease to threaten the reassuring appearance of clarity. In the absence of certainty of truth and faith, decision-making is the wrestling ring of the lawyer’s public rhetoric and private doubts, ultimately leaving his or her commitments to cope with the blow of loss and struggle to return for another round.16 Cynicism, then, is always there, has always been, and is not to give way; that’s intrinsic to the structure of legal argument. Yet ‘the dialectic of commitment/cynicism’17 is a much deeper insight into the psychology and mental structure of the actors on the international law scene and goes well beyond a structural analysis of law. With characteristic lucidity, Koskenniemi demonstrates how the dying utopianism of commitment gives life to cynicism’s saving face and rationalisation of the status quo; how heroism of venturing into the world of action despite lack of certainty turns into please to

10

Koskenniemi (2017). Id., pp. 42–43. 12 Id., p. 40. 13 Id., pp. 42–43. 14 Id., p. 41. 15 Id. 16 Id., pp. 44–51. 17 Id., p. 54. 11

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(pseudo-)empiricism of facts to conceal one’s ineliminable ambivalence; and how the nobility of commitment’s other-regarding priorities turn into disgrace of everyday hypocrisy.18 This is a kind of ‘existential schizophrenia’19 that seamlessly swings the agent between the nobility of heroism and vices of pure careerism, complacency, hypocrisy, and manipulation.20 Far beyond the neuroses of academics alone, it is equally endemic to legal advisors, activists, and judges.21 Indeed, this vertigo is endemic to modernity itself. In the absence of shared ideological moorings, the loss of faith in rationality, and perceived failure of modernity, it is not surprising that Peter Sloterdijk, as Koskenniemi recounts, speaks of the malaise of ‘enlightened false consciousness’.22 Sloterdijk’s diagnostic account is in line with the twentieth century treatment of cynicism as a form of existential self-assertion.23 In that, he builds on Paul Tillich’s earlier account of modern cynicism as a form of ‘non-creative existentialist attitude’, which leaves modern cynics ‘empty of both preliminary meanings and an ultimate meaning, and therefore easy victims of neurotic anxiety’.24 Tillich’s and, later, Sloterdijk’s and Foucault’s hope in reviving cynicism was to salvage its moral strength as an ethos that could correct the overwhelming sense of discontent and disillusion in the latter part of the twentieth century politics. In cynicism, they sought to find a new language of social critique that embodied the spirit of Enlightenment. Tillich and Sloterdijk made a distinction between Cynicism and cynicism and attempted, each in his own way, to find the reason for the perversion of the former into cynical disillusionment. We will return to this distinction in the next section, but let us pause on Sloterdijk’s existentialist account for another moment. If Enlightenment as a discourse has failed to deliver, ‘enlightened false consciousness’, in the equally apt re-phrasing of one of Sloterdijk’s readers, defines a sensibility which is both formed by this discourse, and which has been utterly abandoned by it. It protects itself from existential collapse by means of an interior ‘reflexive buffer’; the modern cynic is radically alienated both from his own linguistic products and from the possibility of ideologically centred political activity.25

Sloterdijk, however, did not end with critique. His radical corrective was to be found in ancient Cynicism and particularly in Diogenes’s satirical rhetoric and his decision to live in harmony with doctrines he preached. In doing so, he sought to provide a lived philosophy with an effective language for a cynical society and

18

Id., pp. 51–53. Id., p. 58. 20 Id., p. 51. 21 Id., pp. 54–65. 22 Sloterdijk (1987), p. 5; Koskenniemi (2017), p. 57. 23 As we shall see in the next section, Michel Foucault’s account of cynicism differs from Tillich’s and Sloterdijk’s in this respect. 24 Tillich (1988), p. 211 cited in Shea (2010), p. 134. 25 Bewes (1997), p. 4. 19

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challenge the primacy of high theory, all the while as he ‘define[d] a model of subjectivity in rupture with the bad faith of contemporary cynic consciousness’.26 That Sloterdijk’s remedy to the cynical melancholy of modernity is based on a distinction between certain criteria of authenticity (and hence, authentic versus inauthentic cynicism) brings back the metaphysical into politics through the back door. All the same, he is after a remedial corrective and retrieves that in a different philosophy than Enlightenment-gone-awry, even if the cost is a sense of false nostalgia and romanticisation of ancient Cynicism. The existentialist reckoning of Koskenniemi’s melancholic legal agent, however, shares no such vain ambitions (for good reason) and its keen psychological observations are of a different nature and not susceptible to such follies. Still, the dialectic of commitment/cynicism goes only so far. Indeed, because cynicism itself is not a totalising identity even in a philosophical understanding, it could not go beyond a certain point. Perceptive as a psychological account of international lawyering and activism is, it consciously remains within the limits of the agent’s psyche and his or her struggles between the constant pulls of the public and the private. Its persuasive allure lies in its recognition of such limits that caution against any effort to draw out possibilities by way of salvation from the inevitability of commitment’s conversion into cynicism. In the darkness of this dialectic’s finality instead, there is wisdom for humility in acceptance of what is certain to come and taking it with a light heart.27 Reading the last lines of the dialectic, one can venture a surmise that in fact with humility, one might reduce the odds of cynicism’s next unwelcome appearance.28 But this is as far as any psychological account goes. What matters is of course not a disciplinary rivalry and philosophy cannot have the last word. It is the centrality of subjectivity and the modern/postmodern anxiety about (dis)integration of different selves—the private and the public, the personal and the professional. The philosophical account favoured here, the kind that boasts a historical record of feeding critical energy into politics, is not focused on the cynical self—or any self for that matter. Instead it is preoccupied with drawing empowering force from inevitable discontents for coping with misery and for fresh political action. In that, it parts way with psychological and existential accounts of the (cynical,) inward-looking self. The self, entrapped between commitment and cynicism of the legal agent perhaps, with the help of a good deal of re-interpretation, reminds one of Alan Keenan’s ideal type ‘the cynical insider’.29 Keenan’s ‘cynical insider’ falls in-between the other two ideal types, ‘master-cynics’ and ‘outsider cynics’ in its connection to and possession of power. Motivated by fear of losing their position or security, cynical insiders are shameless in their use of publicity and verbal redescriptions to help maintain and legitimise the power of the powerful.30 ‘These are the alienated 26

Shea (2010), p. 151. Koskenniemi (2017), p. 67. 28 Id. 29 Keenan (1998), p. 4. 30 Mazella (2007), p. 9. 27

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middlemen, . . . who are given the job of creating and sustaining the illusions that allow the powerful to rule.’31 It would be more than uncharitable and inaccurate to attribute the same kind of shameless guardianship of power to the legal agent of the commitment/cynicism dialectic. The inevitability of the psychologically-inescapable pull of commitment/cynicism dichotomy is different from conscious, deliberate, self-interested manipulations of ‘cynical insiders’ after all. Yet when one considers the last breaths of the agent’s commitment when all of its three defining aspects— rationalisation of status quo, seeking refuge in (pseudo-)empiricism from unabating ambivalence, and hypocrisy—become either the very opposite or the miniaturised version of what they were and he or she nevertheless feels bound to keep up with the rhetoric, it is not difficult to recall the image of Keenan’s ‘cynical insider’. That is true most notably in the case of conflicted practitioners and legal bureaucrats with vested institutional interests. Be that as it may, focusing on the psychology of the cynical agent still says little about cynicism itself, what it has been taken to mean historically, and how it could potentially serve as a disruptive, enabling force in social thought and politics.

3 What Cynicism Has Been In the company of Diogenes of Sinope, cynicism has been attributed to a wide variety of thinkers: from Socrates to Machiavelli, Spinoza, Rousseau, Nietzsche and even Wittgenstein.32 In turn, a wide variety of ethical, lifestyle, aesthetic, and political dispositions have been taken to represent cynicism as a lived philosophy: asceticism, self-sufficiency, cosmopolitanism, a disenchanted view of human society and social conventions, rhetorical practice of redescription, anarchism, and so forth. Some of these practices, inclinations and beliefs are certainly closer to the original Cynics’ ways and some are a result of its subsequent acceptation and adaptations. To have a better chance at re-claiming the best of this legacy, we ought to rely on a reservoir of experience, from ancient Cynicism to modern variations, that has advanced a cynical attitude as a linguistic tool and ethical basis to engage in social criticism.33

31

Id. Wittgenstein seems to be an unexpected company here, unless, first, we adopt a less specific understanding of cynicism, or, second, focus on Wittgenstein’s anti-philosophy. For an example of the former, see Laursen (2009), p. 469. 33 Shea (2010), p. 11. 32

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Ancient Cynicism

Most of what we have on the widely quoted Diogenes and all less-known figures practicing a Cynical mode of life is anecdotal and largely unsubstantiated.34 An ascetic and simple lifestyle gave ancient Cynics a higher moral ground to attack materialism. Most famously, Diogenes the dog (kyon) scoffed at all sorts of social conventions, from the quotidian to those advanced by larger societal forces. Cynicism’s moral teachings were more clearly transmitted by Epictetus who offered a stoicised version of Diogenes in his Discourses, according to which, beyond an ascetic lifestyle, the Cynical life was about self-discipline and relinquishment of envy, rage, greed and immoral desires. Others have drawn a more moderate image of Diogenes that nonetheless speaks of his moralism.35 Our reward from engaging with the colourful stories, entertaining practices, and pithy expressions attributed to ancient Cynicism would emerge in a few of its messages: that its disenchanted worldview long preceded the post-Enlightenment kind and so reducing cynicism to a simple understanding of modern disenchantment is ahistorical; that the fear of cynicism begetting cynicism ignores the variety of practices attributed to the practice and its complexity; and that ancient Cynicism’s cosmopolitanism36 and anti-slavery sentiments were the direct effect of its distinctive moralism and well deflect popular charges of nihilism. Although Cynicism may never really have found a place of honour among philosophers,37 it certainly constitutes a coherent set of ideas and practices in defiance of social conventions. Uncharacteristically for a philosophical movement, a good deal of these ideas are sententious and reflected in the form of aphorism. These aphorisms convey ‘black humour, paradox or surprise, and [just as importantly] ethical seriousness’.38 This is why for some, Cynicism is in part ‘a body of rhetorical and literary genres’39 which are not a mere form embodying Cynic doctrines incidentally, but are in fact an activity—the exercise of ‘parrhesia’ or free speech—through which Cynicism originated.40 Cynicism’s ‘link to arts of philosophical jesting’ is important not only for the fact that it distinguished the Cynics from all other ancient philosophers in their regard for ‘freedom (of speech) as a central value to Cynic philosophy’,41 but also in the way it endures into the life of modern cynicism in the Republic and later in the nineteenth century. That explains 34

The most cited reference on Diogenes is Laertius (1979). See, e.g. Mazella (2006), p. 102. 36 On Cynicism’s cosmopolitanism, see Moles (1996), p. 105. 37 Hegel wrote of the Cynics: ‘there is nothing particular to say of the Cynics, for they possess but little philosophy, and they did not bring what they had into a scientific system’, Hegel (1983), p. 479 as cited in Long (1996), p. 29. 38 Long (1996), p. 33. 39 Dudley (1937), p. xi as cited in Branham (1996), p. 82. 40 Branham (1996), p. 103. 41 Id. 35

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why in examining the genealogy of modern cynicism, some believe that better evidence is often found in literary-philosophical or purely literary rather than theoretical-philosophical sources.42 Controversy around Cynic philosophy is perhaps exacerbated because of its mostly unwritten heritage. Its cosmopolitanism is taken to be merely in its negation of the importance of the polis rather than a positive value.43 Its connection to Socratic moral tradition is emphasised to discount the importance of its rhetorical dimension.44 Venerated and denigrated disproportionately, it is nevertheless a legacy capable of resurrection for critical use as its future has proved time and again. It is to that future that we now turn.

3.2

Modern Cynicism

What was so appealing in the peculiar character of Diogenes that could be appropriated by both Enlightenment philosophes and counter-enlightenment forces to personify rebellion against tradition and modernity alike? Heinrich NiehuesPröbsting seems to provide one of the most concise and apt explanations. Besides extraordinariness, he suggests, Diogenes is a representative of reason and Cynicism embodied alongside ideals of freedom, open criticism of the religious and secular alike, philanthropy, and cosmopolitanism.45 All the same, Diogenes is burdened with folly as well; hence Cynic became a term for Enlightenment’s sarcasm and abuse applied by some of the philosophes to their peers, such as Rousseau, who were well-situated in the ranks but nevertheless targeted as outsiders.46 Most importantly, folly is not contingent or passing but a consequence of reason itself and its excesses: In Cynicism, the Enlightenment discovers the danger of reason being perverted, . . . reason being frustrated because of its own far too exalted expectations. The Enlightenment becomes aware of this menace to itself through its affinity with Cynicism. The reflection on Cynicism provides a necessary piece of self-recognition and self-criticism. Consequently, the failure of the Enlightenment – or of one part of it – leads to cynicism in the modern sense of the word.47

42 Niehues-Pröbsting (1996), p. 341. This is hard to dispute given the abundance of evidence. Yet an emphasis on the literary weight of cynicism might be misleading to the extent that it might detract from the social forces—such as alienation—determining various manifestations of it. 43 For an opposite view which demonstrates the positive contributions of the Cynics to cosmopolitanism before the Stoics, see Moles (1996), pp. 119–120. 44 For a contrary view, see Branham (1996), p. 102; for a summary of opposing views, see id., p. 84; for a stronger view in favour of the Stoic philosophy’s ethical theory as compared to Cynicism see Gill (2013). 45 Niehues-Pröbsting (1996), p. 332. 46 Id. 47 Id., p. 333.

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In the context of the Renaissance’s celebrated strongly sexualised satires, Diogenes’ irreverence might seem to fit naturally. Yet Enlightenment philosophes demanded more of his figure. Rather than a misanthropist (historically inaccurate) and indecent (an obsolete characteristic in 1750s’ French society), D’Alembert’s Diogenes is a symbol of independence (‘from patronage and from collaboration with tyrannical governments’) and of courage in expression of truth.48 Remote from the rugged and destitute image of Diogenes on the street, the eighteenth century’s cleanshaven, literate, and philosophical Cynic is the man of letters akin to today’s public intellectual.49 D’Alembert’s fiercely independent Diogenes is thus to speak the truth, but to do so in ‘a manner suitable to collaboration, conversation, and [a] fruitful exchange of ideas’ with his peers as an ‘ideal member of the republic of letters’.50 This polished image, however, was soon to be contested by the very philosophes who sought a language of social criticism in Cynicism. Diderot for instance, after imprisonment adopted, in his most well-known works, ‘dialogue’ instead of ‘the allegorical satire’ of his earlier writings,51 and took Socrates as a consolation and hope for uttering truth under censorship.52 But this left him with a nostalgia for ‘the lost eloquence of the ancient world and for the Cynic’s satirical bite’.53 Diderot’s response to this yearning led him to create, if inadvertently, a comfortable niche for philosophers to write in the safety of their status in a way that converts their readers into Cynics.54 He thus attempted to employ Cynicism to interrogate Enlightenment, while presenting the former simultaneously as ‘the illness and the potential remedy of the progressive agenda of the philosophes’.55 Rameau’s Nephew only exacerbated this complexity by portraying two exaggerated extremes or caricatures of Cynicism: of the idealised, refined philosopher who stands for autonomy and independence (the philosopher) on the one hand, and that of the Cynic with all those obscenities that the philosophes had tried to disavow in Cynicism.56 In pitting good against bad cynicism, Rameau's Nephew might just have been a foretelling of Sloterdijk’s diagnosis of two centuries later. Cynicism figured so significantly for Enlightenment philosophes that even Rousseau, who arguably had no or negligible enduring interest in that tradition, was compared, mostly unkindly, to Diogenes by other philosophers. To some, Rousseau’s flirting with Cynicism is nothing more than a pose.57 Others read what

48

Shea (2010), p. 30. Heinrich Niehues-Pröbsting reads Christoph Martin Wieland’s Diogenes as what would be termed a public intellectual today; Niehues-Pröbsting (1996), p. 336. 50 Shea (2010), p. 31. 51 Sherman (1976), p. 33 cited in Shea (2010), p. 47. 52 Shea (2010), p. 48. 53 Id., p. 49. 54 Id., pp. 56–57. 55 Id., p. 57. 56 Id., pp. 57–58. 57 Niehues-Pröbsting (1996), pp. 340–341. 49

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began as a superficial play of verbiage in Rousseau—which in any case reflected his sense of alienation—but led to the adoption of a lifestyle of poverty as a full-fledged commitment (although seasonal) to Cynicism.58 Rousseau’s life in Cynicism was more practical: challenging polite conventions and his penchant for diatribes. This primitive adherence nevertheless seemed to enrage the Encyclopedists in the way it challenged the political and intellectual compromises of the republic of letters;59 hence caustically identifying him with Diogenes, and sometimes a false one in that.60 Beyond different interpretations of Rousseau’s Cynicism, two points still withstand. First, that Cynicism could take Rousseau only so far. By the time of Social Contract, the primitivism of Diogenes was all lost. Second, regardless of the nature of his affinity with Cynicism, he still managed to leave a positive impression about Cynicism in a figure no less than Kant.61 Yet this might say more about Rousseau himself than about Cynicism. The story of the modern acceptation of Cynicism is not one of a search for authenticity; that was still to come with Sloterdijk. Whatever else it might have been, Cynicism was refined by Enlightenment’s polite society and came out humourless. The expulsion of humour from Cynicism, in one reading, was the beginning of its end and the very beginning for cynicism.62 If this is indeed historically convincing, we are left with a whole body of ancient practice to sift through and reconstruct Cynic attitudes that are responsive to today’s politics. Sloterdijk’s existential answer falls short. Our answer might not be in holding the philosophers responsible for diluting a romanticised figure of Diogenes, selective fractures of Cynicism, or a choice between the two kinds. It might rather be in a new reconstruction of cynicism’s best critical legacy at the service of radical politics regardless of its origin, ancient or modern.

3.3

Cynicism After the Frankfurt School

In the latter part of the twentieth century, there was another revival of interest in cynicism. Peter Sloterdijk and Michel Foucault were of course responding to a different set of problems than the Enlightenment philosophes. But they, too, envisioned cynicism to offer a new linguistic tool, a new philosophical ethos, and a model of philosophical agency to articulate social criticism.

58

Shea (2010), pp. 100–101. Id., p. 103. 60 Niehues-Pröbsting (1996), p. 347. 61 Id., p. 339. 62 This is the central thesis of Louisa Shea’s book, which seeks historical confirmation for Sloterdijk’s largely intuitive argument. Shea (2010), pp. 100–101. 59

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We have already heard Sloterdijk’s principal message, defining cynicism in a memorably arresting phrase, ‘enlightened false consciousness’,63 juxtaposing Cynicism and cynicism, and venerating the former while dismissing the latter. Celebrating the humour and ‘cheekiness’ of Diogenes, living in harmony with the doctrines he preached, and defining the body as the privileged locus of resistance, Sloterdijk never really articulates how exactly any of these could give Cynicism a liberatory force. The frailty of Sloterdijk’s account is not merely in its lack of historical grounding in the Enlightenment philosophes’ experiment with Cynicism, but in its largely satirical and suggestive style that at best provokes and offers new energy and awakes from indolent apathy, and at worst evokes nostalgia to no end. Beyond spontaneity, it is hard to appreciate what exactly a simplistic hedonism could bring into subversive politics. For spontaneity alone, Cynicism might just have been too long a journey to take, and Sloterdijk’s mystic account seems to have little more to give. Around the same time and centering on philosophies that connect truth-telling to a rigorous commitment to shaping one’s life based on one’s principles, Michel Foucault’s last lecture courses also draw on Cynicism. Yet for Foucault, beyond an ancient philosophy, Cynicism is a transhistorical attitude.64 Its core significance for Western philosophy, as Foucault believes, lies in its ability to connect blunt speech and self-fashioning.65 Cynicism is not about individual courage in free speech in the face of adversity, but an ethos that marries the manifestation of truth to forms of existence.66 This in turn, allows Foucault to bring Cynicism to bear on the relations of the subject to power and power to truth, making it into ‘an ethos that would allow the games of power to be played with “the minimum of domination possible”’.67 For Foucault, three main characteristics make Cynicism stand out as a model of doing philosophy and making critique relevant. First, ‘truth embodied’. The Cynic does not just tell the truth, he lives it. His simple lifestyle, poverty, and shunning of social conventions make it possible for the Cynic to live the life he speaks of.68 Second, ‘a militant beneficence’. Foucault’s Cynic, contra Sloterdijk’s projected mystical, Zen-master figure, is a militant force for societal change.69 Third, ‘scandalous banality’. Here Foucault finds the Cynic’s grotesque and seemingly extraordinary practices as in fact evidence of what they live for: demystifying philosophy, and nothing more.70

63

Sloterdijk (1987), p. 5. Foucault (1984), p. 163 cited in Shea (2010), p. 176. 65 Foucault (1984), pp. 152–153. 66 Id., p. 166. 67 Shea (2010), pp. 177–178. 68 Foucault (1984), p. 233 cited in Shea (2010), p. 182. 69 Shea (2010), pp. 182–185. 70 Id., p. 186. 64

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This last character alone might settle the score between claims that have historically pulled Cynicism to different directions, foisted political meanings into it, cashed out artificial criteria of authenticity on its account, and asked it to give more than it could afford. ‘Scandalous banality’ makes social critique relevant by advising against blueprints and by embracing contingency and tactical movements in the face of adversity and oppression. With this historical potential in sight, let us now try to imagine, in an experimental fashion, whether and how a cynical temperament could speak to international law in words that carry the seeds of energised political engagement and a sense of empowered agency.

4 Cynicism in International Law? If cynicism were to orient actors toward a meaningful political engagement with international law, it would have to be freed from the darkness of psychological despair, existential anguish, and misguided philosophical attempts at appraising its authenticity based on binary distinctions. Recent re-emergence of interest in cynicism in political theory, not as a full-fledged theoretical enterprise for social change but rather as a critical ethos, offers some interesting avenues of further inquiry.71 These projects build on the work of a small group of classicists and historians who have introduced a fresh assessment of Cynicism as a distinctive moral-political outlook; as a modus dicendi [an art of speech] for coping with misfortune; as a repertoire of subversive rhetorical techniques that ‘moralize the gap’ between ideals and practices; [and] as localized ‘tactics’ of resistance which serve to ennoble the protests of otherwise disempowered actors.72

Having moved away from a counterproductive binary division between old and new cynicism, at core, these projects seek to re-appropriate the presumed vices of a cynical attitude for survival, subversive political action, and contingent progress. One line of argument severs the falsely assumed link between trust and democratic politics to challenge the perceived threat of cynicism to democracy. Cynicism, it holds, is an ineradicable, constitutive element of democracy, rooted in the inevitable gap between external performance and interior motivations that characterizes human sociability.73

In that realisation today, we are no different from Enlightenment philosophes.74 Rather than despair over the impossibility of reliance on and trust in some idealised vision of political virtue, cynicism can mobilise marginalised actors towards

71

See, e.g. McGuire (2018), Shea (2010) and Stanley (2012). McGuire (2018), p. 4. 73 Stanley (2012), p. 192. 74 This is in fact a central thesis of Stanley’s book. 72

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adaptable tactics to resist and assault hegemonic norms and institutions.75 Such tactics are time-dependent and ‘always on the watch for opportunities that must be seized “on the wing”’.76 In tactical moves, the vulnerable must resort to ‘forces alien to them . . . when they are able to combine heterogeneous elements’ propitiously to achieve their ends through ‘manipulat[ing] events in order to turn them into “opportunities”’.77 Opportunistic tactics are not too far from one particular reading of Diogenes’s rhetorical expressions: a modus dicendi, a way of adapting verbally to (usually hostile) circumstances. . . . [T]his process of invention, this applied rhetoric . . . constitutes the Cynic's discourse, a process in which strategies of survival and rhetorical strategies repeatedly converge and coalesce.78

The Cynic’s rhetorical discourse then, is the embodiment of the decision to seize tactical opportunities as they arise. Decisions of tactical nature, however, seem to cause raised eyebrows in those with a Procrustean bed to force practice into formulaic theories. Inspired by military theories of ‘strategy’ versus ‘tactic’, one such critique objects to critical international legal scholars’ description of their interventions as ‘strategic’ and instead re-describes them as merely ‘tactical’. By sacrificing the long-term and structural benefits of ‘strategic’ action for the short-term and conjunctural considerations of ‘tactical’ positions,79 the argument goes, critical international law scholars in fact not only lose sight of the importance of fundamental societal change that could be achieved through proper strategies but also stay content with small tactical victories and ultimately reinforce the sources of domination. Under this account, for instance, the well-known, open letter of several British-based critical legal scholars contesting the legality of the second Iraq War in 2003 based on doctrinal grounds was with a view to win that particular battle and stop the war.80 But such a short-term victory through the use of tactical terms of liberal legalism was nevertheless ‘problematic in strategic [long-term, structural] terms’, and in fact might confine ‘prudence’ to shortterm objectives and gains.81 The Marxist-inspired objective of unconditional prioritisation of structural considerations and revolution over reform aside,82 the romantic, revolutionary aspirations for wholesale change undergirding such zero-sum programmatic political theories are entirely oblivious to transience and contingency of opportunities for political action. Under such dogmatic accounts, seizing opportune moments to stop or end a war or adopt the legal verbiage to inspire hope in victims of violence without

75

Stanley (2012), p. 203. de Certeau (1984), pp. 36–37. 77 Id. 78 Branham (1996), pp. 87–88. The connection is suggested in Stanley (2012), p. 203. 79 Knox (2010), p. 194. 80 Id., pp. 205–207. 81 Id., p. 208. 82 Id., p. 215. 76

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the absolute guarantees of structural change would thus be a loss—if not plain betrayal. ‘Opportunistic coping’ and settling for contingent progress, both encouraged by a cynical temperament, would seem to detract from the ‘Platonic pretensions’83 of such grand theoretical programs. Unconcerned with fitting political struggles into the normative guidance of wholesale theoretical programmes however, actual narratives of various actors’ resistance on the ground find empowerment in adaptable tactics and opportunistic coping. In what could be read as a counter-illustration to the above example and through a compelling ethnographic account, Lori Allen demonstrates how a cynical distrust among the West Bank Palestinians against human rights organisations and their lip-service to lofty ideals—including the language of law’s assumed neutrality—has not led to despair and resignation in local actors, but instead enabled them, emotionally, politically, and intellectually, ‘to keep a liberated Palestinian state imaginable’.84 This kind of ‘opportunistic coping’ is temporal and contingent, but certainly not hypocritical or deceitful. It is a tactical exercise in a world morally mired in corruption and politically compromised, which allows the disempowered to survive while the inevitable contestation continues. Cynicism, after all, is nothing but ‘an affirmation of contingency’. It is contingent because it puts forth a radical challenge to dogmatic certitude. The cynical critique of convention does not deny conventions in order to acknowledge substitutes, and it affirms itself from within the very institutions whose claims to legitimacy it challenges. A champion of criticism rather than recognizing, Diogenes assailed conventions because they were conventional; the alternative was – as it continues to be – the reactionary reification of habit as necessity.85

But cynicism is also contingent in another sense: it is temporal and not suspicious of all nomos at once. It is not after chaos or moral and epistemic vandalism. Cynicism’s target is the ‘pathology of certainty’86 and dogmatic pretensions. In some way, it is precisely various forms of ‘pathology of certainty’ that, consciously or otherwise, underlie expressions of objectives and demands in political contestations. When ‘the international human rights movement’ is described as ‘part of the problem’,87 the critique does not simply destabilise many activists because they are strangers to pragmatism. Taken as a counterpoint to ‘a naive, devotional approach to human rights . . . [pragmatism] is far from being an extravernacular project or one that would ruffle the feathers of most human rights activists’.88 ‘Too much faith is the worst ally’ might be an obvious theoretical insight to many professional activists after all.89 What in fact offends the 83

McGuire (2018). Allen (2013), pp. 25–26. 85 Schreier (2009), p. 39. 86 McGuire (2018), p. 68. 87 Kennedy (2002). 88 Charlesworth (2002), p. 130. 89 Kundera (1974). 84

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movement’s sensibilities and removes the carpet from under its advocates’ feet is exposure of their ambivalence, longing for impossible faith in some mooring dogma, and inability to own up to their constant indecision between principles and consequences while waiting for certainty becomes pathological and brings political paralysis. A cynical temperament, instead, emboldens actors to not only face but also embrace the death of dogmatic certitude not once forever but for so long as political engagement is to live. Cynicism’s challenges to the long-held value of trust in politics, its affirmation of contingency and negation of dogmatic certitude of conventions, and its tactical deployment of suspicion for opportunistic coping may all taste bitter to international lawyers’ taste buds. But hasn’t both day-to-day and grand-scale occupation in international law already been fraught with all that? If the answer is in the affirmative, then cynicism might offer a new opportunity to pursue these lines of inquiry on more conscious, deliberate and productive terms. Neither the darkness of an existential approach to cynicism, nor the poverty of a colloquial understanding of it could do justice to a rich heritage of pessimism about social conventions and optimism about human agency. The Cynic mocks the structure, but nurtures hope, in unbound human agency. This might be the most instrumental message of Cynicism from which much else results. Imagine a space in which the plausibility of demands, feasibility of protests, or legitimacy of negotiations are not tied to a reprehensive or approbative Procrustean bed of predetermined, elaborate theories—theories whose rightness for the holders will ultimately prevail over their resulting consequences. Imagine sites of struggle wherein ‘cynical complicity’ of participants eases the pain and suffering of the conflict and may very well redefine the ‘gives’ and ‘takes’ of stakeholders. And if that is not too difficult, imagine scholarly interventions capable of moving beyond some conventional understanding of ‘territorial integrity’ and ‘political independence’ as the sacred yardsticks of the UN Charter with pre-determined meanings to draw up new boundaries. This is not about crude consequentialism or unprincipled pragmatism. It is rather about ‘opportunistic coping’. The disempowered and the hopeless must be able to cope after all, while they await illusory permanent solutions. Freed from crippling darkness, what cynicism could potentially offer international law as a conscious modus of political agency requires more unconventional thinking and bold action. But what it already does have to offer today by way of survival tactics is no small gift. Acknowledgments My thanks to Dr. Kevin Gray for research guidance and intellectual camaraderie and to workshop participants in Prague, Berlin, and Toronto for their engagement with earlier drafts.

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References Allen, L. (2013). The rise and fall of human rights: Cynicism and politics in occupied palestine. Palo Alto: Stanford University Press. Austin, J. (1863). The province of jurisprudence determined. London: Murray. Bewes, T. (1997). Cynicism and postmodernity. London: Verso. Branham, R. B. (1996). Defacing the currency: Diogenes’ rhetoric and the invention of cynicism. In R. B. Branham & M. O. Goulte-Caze (Eds.), The cynics: The cynic movement in antiquity and its legacy (pp. 81–104). Berkeley: University of California Press. Charlesworth, H. (2002). A response to David Kennedy. Harvard Human Rights Journal, 15, 127–132. De Certeau, M. (1984). The practice of everyday life. Berkeley: University of California Press. Dudley, D. R. (1937). A history of cynicism from diogenes to the sixth century AD. London: Methuen. Eslava, L. (2019). TWAIL Coordinates, international law under construction. Retrieved 25 August 2019, from https://grojil.org/2019/04/01/twail-coordinates/ Foucault, M. (1984). Le Courage de la vérité, Lecture of February 29, 1984. In M. Foucault (Ed.), Le Gouvernement de Soi et des Autres II. Cours au Collège de France. Paris: Gallimard. Gill, C. (2013). Cynicism and stoicism. In R. Crisp (Ed.), The Oxford handbook of the history of ethics (pp. 93–111). Oxford: OUP. Goldsmith, J., & Posner, E. (2005). The limits of international law. Oxford: OUP. Hegel, G. W. F. (1983). Lectures on the history of philosophy. Atlantic Highlands, New Jersey: Humanities Press. Howard, S. D. (2016). Three days and two nights: An amusing Arthurian adventure. PJPF Press. Keenan, A. (1998). The twilight of the political? A contribution to the democratic critique of cynicism. Theory and Event, 2(4). Retrieved 30 April 2020, from https://muse.jhu.edu/article/ 32493 Kennedy, D. (2002). The human rights movement: Part of the problem? Harvard Human Rights Journal, 15, 101–126. Kennedy, D. (2017). A new stream of international legal scholarship. In S. Wiessner (Ed.), General theory of international law. Leiden: Brill. Knox, R. (2010). Strategy and tactics. Finnish Yearbook of International Law, 21, 193–229. Koskenniemi, M. (2017). Between commitment and cynicism: Outline for a theory of international law as practice. In J. d’Aspremont, G. Tarcisio, A. Nollkaemper, & W. G. Werner (Eds.), International law as a profession (pp. 38–66). Cambridge: CUP. Krasner, S. (2002). Realist views of international law. Proceedings of the Annual Meeting of the American Society of International Law, 96, 265–268. Kundera, M. (1974). Laughable loves. US: Alfred A. Knoph. Laertius, D. (1979). Lives of eminent philosophers. Cambridge: Harvard University Press. Laursen, J. C. (2009). Cynicism then and now. Iris: European Journal of Philosophy & Public Debate, 469 Lasswell, H. D., & McDougal, M. S. (1992). Jurisprudence for a free society: Studies in law, science and policy. New Haven: New Haven Press. Long, A. (1996). The socratic tradition: Diogenes, crates, and hellenistic ethics. In R. B. Branham & M. O. Goulte-Caze (Eds.), The cynics: The cynic movement in antiquity and its legacy (pp. 28–46). Berkeley: University of California Press. Mazella, D. (2006). Diogenes the cynic in the dialogues of the dead of Thomas Brown, Lord Lyttelton, and William Blake. Texas Studies in Literature and Language, 48(2), 102–122. Mazella, D. (2007). The making of modern cynicism. Charlottesville: University of Virginia Press. McGuire, J. (2018). Cynical suspicions and platonist pretentions: A critique of contemporary political theory. Leiden: Brill. Mearsheimer, J. (1994). The false promise of international institutions. International Security, 19(3), 5–49.

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Moles, J. (1996). Cynic cosmopolitanism. In R. B. Branham & M. O. Goulte-Caze (Eds.), The cynics: The cynic movement in antiquity and its legacy (pp. 105–120). Berkeley: University of California Press. Niehues-Pröbsting, H. (1996). The modern reception of cynicism: Diogenes in the enlightenment. In R. B. Branham & M. O. Goulte-Caze (Eds.), The cynics: The cynic movement in antiquity and its legacy (pp. 329–365). Berkeley: University of California Press. Schreier, B. (2009). The power of negative thinking: Cynicism and the history of modern literature. Charlottesville: University of Virginia Press. Shea, L. (2010). The cynic enlightenment: Diogenes in the salon. Baltimore: John Hopkins University Press. Sherman, C. (1976). Diderot and the art of dialogue. Geneva: Droz. Sloterdijk, P. (1987). Critique of cynical reason. Minneapolis: University of Minnesota Press. Stanley, S. (2012). The French enlightenment and the emergence of modern cynicism. Cambridge: CUP. Tillich, P. (1988). The courage to be. In P. Tillich (Ed.), Hauptwerke (Vol. 5, pp. 141–230). Berlin: De Gruyter.

Hengameh Saberi is Associate Professor at Osgoode Hall Law School, York University, Canada.

Part II

Cynical Actors in International Law

The International Law Commission as a Club of Cynics? Originalism and Legalism in the Commission’s Contemporary Work Konstantin Kleine Abstract The main argument of this chapter is that ‘originalism’ and ‘legalism’, whether they are consciously or subconsciously present in the work of the International Law Commission, lead to the International Law Commission partaking in enabling states to use International Law in a cynical fashion, mainly by legitimising a conceptualisation of international law characterised by wide-ranging state sovereignty and states as the exclusive norm entrepreneurs. This legitimisation is consequential, owing to the International Law Commission’s standing in international law. ‘Legalism’ describes the ideological belief that law and politics are two fundamentally different and separate things, and politics is inferior to law, while ‘originalism’ is a term borrowed from United States constitutional scholarship, meaning that the US Constitution must be interpreted based on the original understanding at the time of its drafting. Adapted for the context of the International Law Commission, ‘originalism’ describes a static concept of international law, wherein a treaty, convention, or other document, once concluded, can only be interpreted based on the understanding at the time of its drafting. Examples for the influence of ‘originalism’ and ‘legalism’ in the International Law Commission include the insistence on (artificially) separating codification and progressive development in the work of the Commission, while regularly discouraging the progressive dimension, and the uncritical readoption of decades old legal texts. Further, the tendency towards reducing international law to what has been established as backed by state consent, and the deliberate reduction of topics of work

The author has been an assistant to Dr. Eduardo Valencia-Ospina in the International Law Commission from 2015 until 2019. All the views expressed are his own and not endorsed in any way by the Commission. The author thanks the participants at the Cynical International Law conference in Berlin, and of the PhD Roundtable at the Graduate Institute, Geneva, for their helpful critical comments. In particular, the author would like to thank Professor Patrícia Galvão Teles, Professor Nico Krisch, Dr. Eduardo Valencia-Ospina, Daimeon Dean Shanks, Dr. Dana Burchardt, and Dr. Björnstjern Baade for detailed comments and editing. K. Kleine (*) Graduate Institute of International and Development Studies (IHEID), Geneva, Switzerland © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_5

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to uncontroversial issues by excluding anything with a political dimension can be understood as resulting from a belief in ‘legalism’ and ‘originalism’. In conclusion, the chapter argues that the International Law Commission must become more cynical to stay relevant and no longer turn a blind eye on the cynical, self-interest-driven ways of states in using international law.

1 Introduction What kind of character will that commission have? Will it be a commission that seeks to find only what states have agreed to, and use that as the touchstone for its work?1 Donald Malcolm McRae (ILC Member 2007–2016)

A chapter with such a provocative title needs to start with a disclaimer. It is not my intention to designate the individual members of the International Law Commission as cynics, neither in the dictionary-definition sense as believing in selfinterest as the main force determining human (or state) behaviour,2 nor in the sense as framed by the editors of this book as abusing or circumventing international law. By the same token, if I cite a statement or a report by a specific member, it is not for singling the member out for any kind of character judgment. Most likely it is just an indication of which statement I happened to remember at the time of writing. Nevertheless, this chapter argues that the work of the International Law Commission as a whole enables states to use international law in a cynical fashion, providing a cover for states circumventing or abusing international law. Moreover, the paramount importance placed on state opinions in the work of the International Law Commission might make circumventing the law moot, as the law is shaped at the convenience of states. It is further suggested that much of the cynicism, or to be precise, the facilitation of cynical uses of international law, by the International Law Commission can be attributed to two ideological premises, those of ‘legalism’ and ‘originalism’. Ideological ‘legalism’ describes the belief that law and politics are two fundamentally different and separate things, and politics is inferior to law, while ‘originalism’ is a term borrowed from United States constitutional scholarship, meaning that the US Constitution must be interpreted based on the original understanding at the time of its drafting. Adapted for the context of the International Law Commission, ‘originalism’ describes a static concept of international law, wherein a treaty, convention, or other document, once concluded, can only be interpreted based on the understanding at the time of its drafting. The two ideological tenets are not mutually exclusive, to the contrary, there are considerable overlaps.

1

Transcription from the oral recording of the author, see for the written record: ILC, Provisional summary record of the 3331st meeting; Held at the Palais des Nations, Geneva, on Friday, 29 July 2016, at 10 a.m., UN Doc A/CN.4/SR.3331 (21 September 2016), p. 12. 2 www.merriam-webster.com/dictionary/cynic. Accessed 7 June 2019.

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Together, ‘originalism’ and ‘legalism’ have led to several instances of enabling cynicism in the International Law Commission. Examples include the sweeping denial of the law-making function of the Commission, and the insistence on (artificially) separating codification and progressive development in the work of the Commission, while regularly discouraging the progressive dimension. Further, the tendency towards reducing international law to what has been established as backed by state consent, and the deliberate reduction of topics of work to uncontroversial issues by excluding anything with a political dimension can be understood as resulting from a, conscious or unconscious, belief in ‘legalism’ and ‘originalism’. The chapter commences with a very brief overview of the International Law Commission itself, followed by an introduction of the concepts of ‘legalism’ and ‘originalism’ and their specific relevance in international law. This is followed by an assessment of the different dimensions in which these concepts affect the work of the International Law Commission and lead to a facilitation of cynical uses of international law. The main focus of the analysis is on the contemporary work on the topics of the ‘Protection of the atmosphere’, ‘Immunity of State officials from foreign criminal jurisdiction’, and ‘Peremptory norms of general international law (jus cogens)’, while making reference to other projects of the International Law Commission when it is beneficial for the analysis. Finally, and partly in place of a conclusion, the chapter makes a preliminary assessment of the consequences ‘legalism’, ‘originalism’, and consequently enabling cynicism could have for the International Law Commission’s reputation, its significance, and ultimately its future place in international law.

2 The International Law Commission The International Law Commission was created by the UN General Assembly in 1947. Since the last enlargement in 1981, it has 34 members, who are supposed to be ‘persons of recognised competence in International Law’,3 representing all legal systems,4 and are elected for five-year terms by the UN General Assembly.5 The commission’s main tasks are the progressive development and codification of international law. The Statute of the International Law Commission reads in Article 1(1): ‘The International Law Commission shall have for its object the promotion of the progressive development of international law and its codification.’ Articles 15 to 24 detail the tasks and prescribe certain methods for the work of the Commission,

3

Article 1(1) Statute of the International Law Commission, adopted by UN General Assembly, Resolution 174 (II), UN Doc A/RES/174(II) (21 Nov 1947), last amended by UN General Assembly, Resolution 36/39, UN Doc A/Res/36/39 (18 November 1981). 4 Article 8 Statute of the International Law Commission. 5 Article 3 Statute of the International Law Commission.

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such as the appointment of a rapporteur for the progressive development on a specific topic,6 or the working relationship with the UN General Assembly. It should be stressed at this point that the International Law Commission matters for international law. Since its inception, the International Law Commission has substantially influenced the development of classical international law. Most obvious, it provided the drafts for which were to become, inter alia, the Vienna Convention on the Law of Treaties, and the Rome Statute of the International Criminal Court. But outcomes of the work of the International Law Commission which have not (yet) been turned into treaties or international agreements are nevertheless also influential. A ‘hard’ influence can be seen in the example of the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Although the Draft Articles are presently just that—draft articles7—they are widely regarded as representing the status quo of the law of state responsibility. This includes provisions that went beyond what the International Law Commission considered to be just codifying customary law, and the application of the Draft Articles by courts and tribunals, including the International Court of Justice.8 While one might point to other possible explanations for the prominence of the work of the International Law Commission in the jurisprudence of the International Court of Justice, seven of its present fifteen judges were members of the International Law Commission before their tenure as judge, it shows that the influence of the International Law Commission extends beyond just drafting documents which eventually become treaties, any outcome of the work of the Commission will most likely be accepted as the de facto international law for the next decades on the respective issue. This is perpetuated by the ‘soft’ influence of the Commission’s work: numerous textbooks refer to the work of the Commission, lecturers assign the Commission’s reports as readings on a topic,9 further cementing the status of the word of the Commission as plainly representing the law.

3 Legalism ‘Legalism’ as an ideology was conceptualised by Judith Shklar in the early 1960s.10 Neither the term legalism nor the concepts described by Shklar were new at the time of the writing,11 but the framing as ideology by Shklar makes it usable for the present

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Article 16(a) Statute of the International Law Commission. UN General Assembly, Resolution 56/83, UN Doc A/RES/56/83 (12 December 2001). 8 Crawford (2006), para. 65. 9 The author was assigned the first and second report on the identification of customary international law, written by Michael Wood, during his LL.M., a non-representative survey among colleagues leads to the conclusion that this practice is widespread. 10 Shklar (1986). 11 See for example Horwitz (1977), Chap. VIII; Unger (2015). 7

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chapter. The core of her book of the same name was an analysis of political trials, focusing on the Nuremberg and Tokyo tribunals after the Second World War. Confusingly, as Shklar admitted herself,12 she used the term ‘legalism’ to describe two distinct ideologies.13 Moreover, the implied meaning of ideology is not congruent. The first, ‘philosophical legalism’, understands ideology as a simple belief system, focusing on individuals. The second, ‘ideological legalism’, which is the conceptualisation of legalism describes an ideology in the Marxian sense, a system of ideas concealing the hegemonic structure of society and the dominance of those in power.14 Likewise, ideological originalism, discussed later, is understood as a narrative obfuscating (inconvenient) realities and simplifying discourses.

3.1

Philosophical Legalism

For the lack of a useful terminological distinction in Shklars work, two designations for the two ideologies of legalism are suggested here. First, ‘philosophical legalism’.15 This describes legalism as the belief system primarily of the legal profession,16 the moral attitude that it constitutes a virtue to adhere to legal rules, or as Shklar put it ‘the extremity of rule-oriented thinking’.17 This ‘philosophical legalism’ can take shape as a ‘social ethos’ as well as an ‘individual code of conduct’.18 Further, ‘philosophical legalism’ emphasises the importance of formal justice and due process.19 ‘Philosophical legalism’ can be conceived of as a scale or to exist in varying degrees. Examples can be found in the Kantian moral theory, but also in the ethos of many lawyers. Particularly, criminal defence lawyers regularly answer with a variation of ‘philosophical legalism’ if they are asked to explain what it means for them to defend someone accused of heinous crimes.20 There is not much despicable in ‘philosophical legalism’, neither would it be pejorative to call someone a legalist in this sense. Partly, it could even be understood as an antithesis to cynicism.

12

Shklar (1986), p. vii. Id., p. vii. 14 Marx (2018). 15 West (2003), p. 130. 16 Shklar (1986), pp. vii–viii. 17 Id., p. viii. 18 Id., p. 1. 19 Id., p. 168; see also Rawls (1999), pp. 73 et seq. 20 Carroll and Hattenstone (2014). 13

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Ideological Legalism

The second ideology designated as ‘legalism’ by Shklar was called by herself at times a political ideology, but with reference to the Marxian understanding of ideology as ‘false consciousness’21 and the aforementioned considerations, it is denoted as ‘ideological legalism’22 here. ‘Ideological legalism’ is defined by two dogmata. First, that law and politics are clearly discrete and distinguishable, second, that law, or legal regulation, is superior to politics, or political arrangement.23 This entails an idealisation of law as clean and pure.24 To maintain this purity, ‘ideological legalism’ shares ‘philosophical legalism’s’ preoccupation with the formal and procedural facets of justice, though not as a virtue as such, but to keep the legal field unencumbered of political considerations.25 Although for Shklar, both legalistic ideologies were ideologies, it is suggested to name the second ideology ‘ideological legalism’. An ideology in the Marxian sense is more than a belief system. It is a narrative to obscure hegemony and the supporting conditions. In the case of ‘ideological legalism’, there is a tension between the pretension that law and politics are separate and law apolitical, and the perception that this separation is imperfect, penetrable, frequently breached. Borrowing from Plato, Samuel Moyn labelled legalism as a ‘noble lie’,26 others, presumably from a more German background, might think of Kohlrausch’s ‘staatsnotwendige Fiktion’27 (fiction necessary for the maintenance of the state). Common is the quintessence that there is something amiss between the perceived reality of entanglement and the postulated separability and distinction. Ideology can conceal this ‘inconvenient truth’,28 and quite successfully so. This is not to say that there is no difference between law and politics, otherwise legal studies would be futile, but the distinction is not as clear-cut as many would like to think, it is rather left in the dark. Shklars ‘Legalism’ is relatively scarcely cited,29 even in the field of critical legal studies. Conceivably, this in itself could be read as a manifestation of legalism, Shklar was a political theorist, not a legal scholar.

21

Eyerman (1981). For the remainder of this text, ‘legalism’ means ‘ideological legalism’, if not indicated otherwise. 23 See for the gender aspects of this distinction Cohn (1993). 24 See also Kammerhofer (2012), p. 366. 25 Shklar (1986), pp. 13 et seq. 26 Moyn (2013), p. 494. 27 Kohlrausch (1910). 28 Marx (2018). 29 Moyn (2013), p. 474; see also Charlesworth (2002), p. 388. 22

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Legalism and International Law

The distinction between law and politics is particularly difficult in the realm of international law. While it seems rather plausible to accept the outcome of a legislative process, eminently in a system with an effective separation of powers, on the domestic level as law,30 drawing the line between law and non-law in the international field is difficult.31 There is no legislature, and a plurality of legal orders and enforcement mechanism coexists in parallel.32 The mainstream response to this conundrum in international law is to, fully in line with legalism, focus on positivism33 and formalism34 to delimit ‘pure’ law from non-law and politics. However, positivism and formalism are readily conflated with state-voluntarism,35 upholding the paradigm that no state can be bound to a rule of international law it did not consent to be bound to.36 A 2014 statement by Marja Lehto, now member of the International Law Commission, exemplifies this conflation: ‘States are still the masters of international law-making.’37 While increasingly contested,38 it seems that the doctrine of state sovereignty and the connected paradigm of the indispensability of state consent for the making of international law are still alive.39 This is particularly true in the realm of classical international law, focusing on the ‘sources’ enumerated in Article 38 of the Statute of the International Court of Justice: States persistently objecting to a norm of customary law are not bound to this rule,40 states can choose not to ratify a treaty or attach specific reservations to their ratification,

30

See also Dworkin (2010), Hart (2012) and Fuller (1969). See for example Pauwelyn (2012) arguing for a grey zone; see also Weil (1983) and Schultz (2014). 32 See Koskenniemi, M., Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682 (13 Apr 2006). 33 Murphy (2014), p. 179; Pellet (1989), p. 23. 34 d’Aspremont (2011); d’Aspremont (2012), n. 62. 35 Murphy (2014), p. 179; Pellet (1989), p. 23. 36 Besson (2016), pp. 299, 302; Murphy (2014), p. 179; Arend (1999), pp. 42, 61; Charney (1993), p. 530; with further critique of this ‘fiction’: Brierly and Clapham (2012), p. 49; against this ‘bad answer to a bad question’: Pellet (1989). 37 Lehto (2014), p. 297. 38 Krisch (2014). 39 While it is unclear when precisely only states were the masters of international law-making, it seems that at least during the period of the League of Nations the paradigm of state consent was less contested than today. See for example Tomuschat (1994), p. 210 referencing again the Lotus case; Koskenniemi (2005), p. 309; but also Rommen (1998), p. 131 already positing in 1936 (first publication as Die ewige Wiederkehr des Naturrechts) that ‘[i]nternational law cannot be based solely on the mere self-obligation of sovereign states’. 40 With detailed critique of the persistent objector rule Charney (1993), pp. 538 et seq. 31

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exempting themselves from some or all binding rules of a treaty.41 Considering the peculiarity that in International Law those making the norms and those bound by the norms are regularly identical, defining and delimiting international law in such a way might not fulfil the legalistic aspiration to separate law and politics. Ultimately, international law must be more than just the condensed will of states to be law.42 Important in the context of the work of the International Law Commission is another tenet of legalism, the notion that law is already there, just waiting to be applied in a non-political, quasi-mechanical fashion. For Shklar, this was central to both philosophical and ideological legalism.43 Apart from the broader issue of the (in)determinacy of legal rules,44 which requires an act of interpretation for the application,45 and which is especially pronounced in international law,46 international law develops rather dynamically. But, most of this development within the realm of classical international law takes place either through adoption of new treaties, multilateral treaties have multiplied in numbers, or through the creation of new rules of customary law,47 rarely through amending existing treaties or rules. The international legal landscape looks considerably different today than 50, 20, or even ten years ago, but once a rule is in place, it is seldom changed and treated as sacrosanct.

4 Originalism Turning to the ideology of originalism, one will find several parallels to ideological legalism, although originalism arose from a very different context, that of United States constitutional interpretation. While the term ‘originalism’ was coined in the early 1980s,48 in an attempt to critique the ideology of originalism, the idea of originalism, interpreting the US Constitution based on its original meaning, as the public would have understood it at the time of the drafting, original intention of the drafters, or the original understanding of those ratifying the constitution, is older.49 But it has developed as a distinct ideology since the 1980s, primarily in reaction to a perceived unduly expansive

41 See on the limits of reservations, invalid reservations, and the conflict with state consent Goodman (2002). 42 Rommen (1998), p. 131; Lauterpacht (2011), p. 438; Koskenniemi (2005), p. 310. 43 Shklar (1986), p. 9. 44 Kramer (2007), pp. 109, 148; Hart (2012), pp. 124 and 128. 45 MacCormick (2005), p. 14; Bianchi (2010); d’Aspremont (2015). 46 Zarbiyev (2012), pp. 259–260. 47 Scharf (2014). 48 Brest (1980). 49 Solum (2011), pp. 3 et seq.

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judicial activism of the US Supreme Court under two successive Chief Justices.50 Justice Antonin Scalia, on the Court from 1986 till 2016, played a key role in establishing originalism, he understood it as a method of textualist interpretation.51 The core of originalism is to understand the US Constitution as it was meant when it, or the respective amendments, were drafted.52 It becomes frozen in time.53 There are several variants of the originalist creed, putting the focus more on the constitutional text, the intentions of the drafters, or the original public meaning, but all take the eternal concept of law inherent to legalism from the abstract to the concrete: law is not only already there, but it is a very specific law from 1787, which is still valid and to be interpreted as on the day of its ratification.54 The proponents of originalism claim that it is politically neutral,55 as it is just the way the (US) legal system is supposed to work, it would be the daily work of lawyers and judges to trace back ‘chain[s] of legal authority’.56 Similarly reminiscent of legalism is the conceptual distinction between law-making and law-application.57 Originalism is presented as a method, or to be more precise, the method,58 of interpreting and applying the US Constitution, and consequently hierarchically structuring the legal system, providing an objective touchstone to legal work. The counter narrative portrays originalism as a political project, devised to further a certain political agenda, in this case a conservative one, by veiling the true agenda in a seemingly neutral and apolitical cover.59 Originalism has been likened to religious belief and myths,60 indicating that it functions, much like legalism, to conceal a discrepancy between ostensible neutrality and politicised reality. From this perspective, originalism can be described as an ideology in the Marxian vein.61 Without pre-empting the discussion of the work of the International Law Commission, two patterns of originalism in international law can illustrate the relevance of the US constitutional law concept in the international sphere. First, although international law is constantly developing, arguably most of the development is not embodied in amendments or changes to treaties, but rather leads to the creation of new regulatory regimes, at times conflicting with the previous ones. The UN Charter, for example, has been amended only five times in more than 70 years. Moreover, all the amendments only concerned enlarging certain councils and adapting the voting

50

Greene (2009), p. 15; Greve (2019). Siegel (2017); see also on the connection of originalism and textualism Bazelon (2020). 52 Solum (2011), p. 41; Greene (2009), p. 10. 53 Baude and Sachs (2019a), p. 816. 54 Baude and Sachs (2019b), p. 1477; Brooks (2013), p. 95. 55 Kaufman (2014), p. 39. 56 Baude and Sachs (2019a), p. 810. 57 Solum (2011), p. 5. 58 Baude and Sachs (2019b), pp. 1490–1591. 59 Greene (2009), p. 15; Kaufman (2014), p. 49. 60 Kaufman (2014), p. 50. 61 See for originalism as ideology in the Hegelian sense Greve (2019). 51

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thresholds in reaction to the growing number of member states, not changing anything substantial.62 At the same time, these politically-brokered treaties are, once concluded, seen as ‘the law’ for many decades to come, independent of and immune to political developments.63 They become regularly frozen in time, just as the US Constitution for the proponents of originalism. Second, it seems that a significant proportion of international lawyers and legal scholars not only subscribes to originalism, but to the specific form of the original intent of the drafter’s originalism.64 Regularly, the travaux préparatoires play an important role in the interpretative process, arguably an outsized role,65 for some, the travaux are more important than the treaty text: ‘interpretation is not so much about finding the objective meaning of a text, but is about finding the intentions of the authors’.66 This bespeaks the originalist belief that the meaning of a legal text, a treaty, is static, and latest fixed at the respective moment of adoption or enactment.

5 Legalism and Originalism in the Work of the Commission The main argument of this chapter is that ‘originalism’ and ‘legalism’, whether they are consciously or subconsciously present in the work of the International Law Commission, lead to the International Law Commission partaking in enabling states to use international law in a cynical fashion. The Commission’s main contribution is legitimising a conceptualisation of international law characterised by wide-ranging state sovereignty and states as the exclusive norm entrepreneurs. This legitimisation is consequential, owing to the International Law Commission’s standing in international law. To substantiate the argument, this section commences with an analysis of the (im)balance between the codification and progressive development aspects of the Commission’s mandate and how this reflects deep-seated legalism. Then, three examples from the recent work of the International Law Commission, which are emblematic for different facets of ideological legalism and originalism in the International Law Commission, are discussed: the work on the topic ‘Peremptory norms of general international law (jus cogens)’ can be described as particularly animated by originalist thinking; the (ongoing) work on the ‘Immunity of State officials from foreign criminal jurisdiction’ is characterised by a paramount deference to state interests; and the considerations of the topic ‘Protection of the atmosphere’ were

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See 557 UNTS 143; 638 UNTS 308; 892 UNTS 119. Kammerhofer (2012), p. 366: ‘The UN Charter does not change because and when the political constellations change.’ 64 Solum (2011), pp. 8–9. 65 Under Article 32 of the Vienna Convention on the Law of Treaties, the travaux préparatoires are only meant to be ‘supplementary means of interpretation’, only to be used if the meaning of a treaty provision would remain unclear, ambiguous, or absurd without their consultation. 66 Referencing Hersch Lauterpacht’s position, Klabbers (2003), p. 277. 63

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accompanied by an explicit agreement excluding potentially controversial political issues.

5.1

Codification and Progressive Development

Since its foundation, the mandate of the International Law Commission consisted of the progressive development and the codification of international law, as laid out in its statute.67 While this might at first sight seem to indicate two different processes, one of law-ascertainment (codification) and one of law-making (progressive development), the processes are, however, in the practical work of the International Law Commission not straightforwardly discernible. Most of the work of the Commission arguably includes codification and development aspects.68 This is also reflected in the way the International Law Commission organises its work. The Statute of the International Law Commission foresees the appointment of a rapporteur only for the progressive development of international law on a specific topic.69 Nevertheless, the International Law Commission regularly appoints Special Rapporteurs for all the topics on their programme of work. This seems to indicate an understanding that progressive development and codification are intertwined and not readily separable. Furthermore, the work of codification can be seen as a law-making exercise,70 not unlike the interpretation of norms by a judge,71 each codification of a hitherto unwritten norm implies an interpretative effort. Having said that, observing the work of the International Law Commission in this decade might lead to the conclusion that something in the Statute of the International Law Commission must have changed, which introduced a hierarchy between progressive development and codification, to the advantage of the latter. The rhetoric in the International Law Commission is emphasising strongly the codification aspect of the work. Several members demand from Special Rapporteurs to explicitly state which part of their reports are codifying existing rules, and which are progressive development, often then arguing that the parts concerning progressive development are going too far, as there is not sufficient state practice to support it.72 Judging from the reports of the International Law Commission on its work from the Cold War era, and scholarly assessments of the International Law Commission’s work, this has not always been the case, although criticism of the reluctance to engage in progressive development was voiced from within the Commission as early

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Articles 1, 15–24 Statute of the International Law Commission. Chen (2010), p. 474. 69 Article 16(a) Statute of the International Law Commission. 70 Ramcharan (1977), pp. 23–24. 71 von Bogdandy and Venzke (2013), pp. 505 et seq. 72 This was particularly evident in, but not limited to, the discussion on the topic of ‘Immunity of State officials from foreign criminal jurisdiction’. 68

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as in 1950.73 Several reasons for this development have been suggested, such as that progressive development became more challenging as the range of topics not already addressed becomes narrower and more specialised, hence large conventions are more difficult to achieve.74 An influence could also be ascribed to the changing structure of the International Law Commission membership, more and more members are not primarily academics,75 but state officials, working in or for their home country. This simultaneous or successive double role likely has an influence on their work in the International Law Commission.76 Also, it cannot be ruled out that individual members have received instructions from their governments which positions to support, which in many cases might be the conservative default-position to change nothing and not partake in progressive development. Furthermore, a different interpretation of the predominance of codification, at least on the surface, is suggested here: The International Law Commission has internalised legalism and originalism. Believing in legalism entails for international lawyers and legal scholars to stay on ‘their’ side of the political-legal divide, only applying, or in the case of the International Law Commission, codifying already existing norms, without engaging in the political process, or norm-making. The belief in originalism furthers the preference for only ascertaining which laws are already there. Combined with a membership of the Commission that is, due to the nomination and election process, likely more on the conservative spectrum of international law,77 the majority of the International Law Commission members is wary of attempts to go any further than what they perceive as already established through state consent. They see their mandate as primarily ascertaining existing norms. It could be argued that this restraint is as well a question of legitimacy and the mandate of the members. But unlike judges at international courts and tribunals, who are, from the perspective of states, predominantly tasked with applying law, not creating it, and who therefore are cautious not to create the appearance as if they were fulfilling a role they were not officially ceded by states, the members of the

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See for example the statement by Jesús María Yepes in the debate on the Regime of the High Seas with respect to the continental shelf: ILC, Yearbook of the International Law Commission 1950; Volume I: Summary records of the second session 5 June–29 July 1950, UN Doc A/CN.4/SER.A/ 1950 (1958), pp. 216–217. 74 McRae (1988). 75 For an empirical analysis of the influence of previous careers as diplomat or state official on judicial behaviour see Voeten (2013), p. 66; Voeten (2007, 2008). 76 Currently, more than half of the members of the commission are (former) career diplomats, in most cases ambassadors, have served or are still serving in cabinet level positions in government, or as principal/senior legal advisor to the foreign ministry. This is not counting those members who have been occasionally advising governments, served as ad-hoc judges, or represented their country in international judicial proceedings. This development has been ongoing for decades, see Sinclair (1987), p. 18; Schachter (1988), p. 4. 77 A notable exception being Martti Koskenniemi, the living ‘folk hero’ of Critical Legal Studies in International Law, who was a member of the ILC 2002–2006.

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Commission are supposed to serve as experts, independent of their governments.78 Even more, the Statute of the International Law Commission explicitly mandates the Commission to pursue progressive development.

5.2

Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission has worked on the topic of ‘Peremptory norms of general international law (jus cogens)’ since it was included in the programme of work in 2015, originally under the title ‘Jus cogens’.79 Dire Tladi was appointed as Special Rapporteur. A full set of draft conclusions with commentaries was adopted at first reading by the International Law Commission in 2019.80 From the outset, the Special Rapporteur emphatically stressed that the project focuses on practice, not theory. This determination was made although there is comparatively little state practice with regard to jus cogens. Further, approaching the topic from the perspective of state practice potentially leads to an incoherent outcome.81 Nevertheless, the Special Rapporteur, as if to reassure the members of the International Law Commission that he will not embark on an academic or political exercise—pandering to the predominant legalism?—repeatedly distanced himself from theoretical considerations throughout the first report: it was promised ‘not [to] stray into untested theories’,82 to ‘resolve the theoretical debate’ on the source of peremptoriness,83 or to refrain from ‘enter[ing] into the theoretical debates that often accompany discussions on jus cogens’.84 Despite not intending to enter into the theoretical debate surrounding jus cogens, the first report devotes considerable attention to providing an overview of the main theoretical approaches to, or ‘schools’ of, jus cogens. In very brief, they can be distinguished based on the answer they give to the question of whether state consent or acquiescence is indispensable for making jus cogens.85 At the same time, a theoretical decision is taken in the first report, in favour of consent-based jus cogens, or, in line with the framing in the

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ILC, Yearbook of the International Law Commission 1979. Volume II, Part 2: Report of the Commission to the General Assembly on the work of its thirty-first session, UN Doc A/CN.4/SER. A/1979/Add.l (Part 2) (1980), p. 186. 79 See Tladi D, First Report on Jus Cogens, UN Doc A/CN.4/693 (8 March 2016). 80 ILC, Report of the International Law Commission: Seventy-first session (29 April–7 June and 8 July–9 August 2019), UN Doc A/74/10 (2019), Chapter V. 81 See in the report itself Tladi, supra note 79, para. 53. 82 Id., para. 11. 83 Id., para. 59. 84 Id., para. 73. 85 Koskenniemi (2005), p. 324; although the report frames it as part of the debate between positivism and natural law, see Tladi, supra note 79.

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report, a positivist understanding of jus cogens:86 the proposed draft conclusion 3 is modelled very closely to the text of Article 53 of the Vienna Convention on the Law of Treaties, including the element of acceptance and recognition by ‘the international community of States as a whole’. It is suggested here that at this point, the project became an exercise in originalism, or put differently, a commentary to Article 53. The subsequent discussion in the International Law Commission and the work of the drafting committee reformulated the original proposal for draft conclusion 3 (and reordered the conclusion, so it became draft conclusion 2), the finally adopted conclusion is a word-by-word reproduction of the second sentence Article 53, merely the two words ‘jus cogens’ in brackets were added.87 Originalism is not only reflected in the outcome of the work, but in the approach of the International Law Commission coming to this outcome. After several pages of discussing theoretical approaches, the first report states, without any explanation, that ‘Article 53 of the Vienna Convention contains the basic elements of jus cogens’.88 No consideration of whether this is the most advantageous understanding of jus cogens is found in the report, neither any reflection of the development over the last 50 years. It seems to be enough that it was adopted in a treaty in 1969, since then, at least for the International Law Commission, the definition is frozen in time. This mirrors the approach taking by originalists towards the US constitution: once something is adopted, whether the urtext or an amendment, it is not questioned anymore, nor is reflected whether it is still compatible with the present reality. Only very few members questioned this approach in the discussion in 2016.89 Subsequently, the discussions in the International Law Commission in 2017, 2018, and 2019 were equally affected by originalism. Considerable parts of the reports, as well as of the final draft conclusions with commentaries, read more like a commentary to Article 53 of the Vienna Convention on the Law of Treaties. One member of the Commission suggested to rename the topic to ‘Jus cogens in the law of treaties’,90 another remarked in the drafting committee in 2019 that the work on a certain draft conclusion was challenging, as it went beyond what could be directly derived from Article 53. The outcome of the work on the topic is sobering, most draft conclusions are anything but innovative. The few conclusions departing from the Vienna Convention were treated with neglect even in the work of the Commission itself. Most notably, draft conclusion 3, which states that peremptory norms ‘reflect and protect fundamental values of the international community’, was left unused by the Special Rapporteur and most commission members when contriving the 86

Tladi, supra note 79, para. 53. ILC, Report 2019, supra note 80, p. 142. 88 Tladi, supra note 79, para. 61. 89 Apart from the statement by Dr. Eduardo Valencia-Ospina, which had been co-authored by the author of this chapter, this included notably Donald Malcolm McRae, see ILC, Provisional summary record of the 3315th meeting; Held at the Palais des Nations, Geneva, on Tuesday, 5 July 2016, at 10 a.m., UN Doc A/CN.4/SR.3315 (10 August 2016), pp. 6 et seq. 90 ILC, Provisional summary record of the 3369th meeting; Held at the Palais des Nations, Geneva, on Tuesday, 4 July 2017, at 10 a.m., UN Doc A/CN.4/SR.3369 (8 August 2017), p. 5. 87

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‘illustrative list’ (now the annex) of jus cogens norms, there is no genuine reference to values in the whole section of the fourth report addressing the list.91 Instead, the ‘illustrative list’ is based on previous commentaries of the Commission on other topics, which it has reproduced in a recurrent fashion without reassessing the merits.92

5.3

Immunity of State Officials from Foreign Criminal Jurisdiction

The topic of ‘Immunity of State officials from foreign criminal jurisdiction’ has been under consideration in the International Law Commission since 2007, when Roman Kolodkin was appointed as Special Rapporteur,93 since 2012, Concepción Escobar Hernández is the Special Rapporteur on the topic,94 Kolodkin had previously left the International Law Commission. Considering the proximity of the topic to the issue of state sovereignty, it is not surprising to see the considerable interest of states in the work of the Commission, neither does it come as a surprise that states have an interest in a rather wide immunity for their officials. As there are by now ten reports and several hundred hours of plenary discussion on the topic, it is not possible to analyse the whole work of the International Law Commission in this chapter. Therefore, the focus will be on one incident and the ensuing discussion, where the issue of deference to state interests became particularly obvious. The commission has been treading carefully on this topic, but in 2017, when the contentious issue of exceptions to immunity was discussed, it could not, as is the usual practice, find consensus, but adopted the respective draft article 7, which states that immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of certain crimes under international law, by a majority

91 Tladi D, Fourth Report on Peremptory Norms of General International Kaw (Jus Cogens), UN Doc A/CN.4/727 (31 January 2019), pp. 24–63. 92 This includes notably the commentaries and travaux préparatoires for the VCLT, see ILC, Yearbook of the International Law Commission 1966. Volume II: Documents of the second part of the seventeenth session and of the eighteenth session including the reports of the Commission to the General Assembly, UN Doc A/CN.4/SER.A/1966/Add.l (1968); which are themselves reproduced in the Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, see ILC, Yearbook of the International Law Commission 2001. Volume II, Part Two: Report of the Commission to the General Assembly on the work of its fifty-third session, UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2) (2007), p. 112 (footnote 641); both commentaries are referenced again in the present work of the Commission on peremptory norms. 93 ILC, Yearbook of the International Law Commission 2007. Volume II, Part 2: Report of the Commission to the General Assembly on the work of its fifty-ninth session, UN Doc A/CN.4/SER. A/2007/Add.1 (Part 2) (2014), p. 98. 94 ILC, Yearbook of the International Law Commission 2012. Volume II, Part 2: Report of the Commission to the General Assembly on the work of its sixty-fourth session, UN Doc A/CN.4/ SER.A/2012/Add.1 (Part 2) (2018), p. 85.

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vote.95 The discussion in the following years 2018 and 2019 was shaped to a considerable extent by arguing with what states had stated in the Sixth Committee of the UN General Assembly on the issue and the vote, with members going so far as to count precisely how many states had agreed or disagreed with the draft article proposed and voted on in 2017.96 Instead of trying to find the best solution from the perspective of finding a just balance between the interests of combating impunity and the interests of the state of the official, which are protected by the immunity, the discussion became about what states saw as the law. The opinions of states regularly play an important role in the determination of rules of international law, most evident with opinio juris being one of the constituting elements of customary norms. Yet, these opinions, and the statements expressing them, are the result of a political process on the domestic level, as well as imbued with non-legal considerations. Nevertheless, the members of the International Law Commission predominantly treat these statements as if they were objective, quantifiable facts, largely avoiding qualitative engagement with the statements and their genesis. Overlooking the irony in regarding these political statements by states as (neutral) law can be best explained with ideological legalism.

95 See for the roll call vote ILC, Provisional summary record of the 3378th meeting; Held at the Palais des Nations, Geneva, on Thursday, 20 July 2017, at 10 a.m., UN Doc A/CN.4/SR.3378 (18 August 2017), p. 13, the discussion preceding the vote commences at p. 9 of the same document; for the follow up discussion at the adoption of the yearly report see: ILC, Provisional summary record of the 3387th meeting; Held at the Palais des Nations, Geneva, on Thursday, 3 August 2017, at 10 a.m., UN Doc A/CN.4/SR.3378 (4 September 2017), pp. 8 et seq. 96 See for example ILC, Provisional summary record of the 3481st meeting; Held at the Palais des Nations, Geneva, on Tuesday, 16 July 2019, at 10 a.m., UN Doc A/CN.4/SR.3481 (26 August 2019), pp. 16–17; Provisional summary record of the 3483rd meeting; Held at the Palais des Nations, Geneva, on Wednesday, 17 July 2019, at 10 a.m., UN Doc A/CN.4/SR.3483 (26 August 2019), pp. 3–4; for the discussion in the Sixth Committee see: UN General Assembly, Sixth Committee, Summary record of the 19th meeting: Sixth Committee, held at Headquarters, New York, on Tuesday, 24 October 2017, UN Doc A/C.6/72/SR.19 (20 November 2017); Summary record of the 21st meeting: Sixth Committee, held at Headquarters, New York, on Wednesday, 25 October 2017, UN Doc A/C.6/72/SR.21 (6 November 2017); Summary record of the 22nd meeting: Sixth Committee, held at Headquarters, New York, on Thursday, 26 October 2017, UN Doc A/C.6/72/SR.22 (27 November 2017); Summary record of the 23rd meeting: Sixth Committee, held at Headquarters, New York, on Friday, 27 October 2017, UN Doc A/C.6/72/SR.23 (17 November 2017); Summary record of the 24th meeting: Sixth Committee, held at Headquarters, New York, on Friday, 27 October 2017, UN Doc A/C.6/72/SR.24 (30 November 2017); Summary record of the 25th meeting: Sixth Committee, held at Headquarters, New York, on Tuesday, 31 October 2017, UN Doc A/C.6/72/SR.25 (24 November 2017); Summary record of the 26th meeting: Sixth Committee, held at Headquarters, New York, on Wednesday, 1 November 2017, UN Doc A/C.6/72/SR.26 (5 December 2017).

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Protection of the Atmosphere

Shinya Murase was appointed in 2013 as the Special Rapporteur for the topic ‘Protection of the atmosphere’. The appointment was accompanied by a remarkable, explicit ‘understanding’, pre-empting the Special Rapporteur from addressing potentially controversial political issues in his reports.97 The understanding makes the self-perception of the Commission evident—it has only a legal role, not a political one. The International Law Commission does not want to interfere with politics, nor does it want to develop existing treaties, lex lata, in an assertive manner. As arguably the clearest embodiment of legalism in the written work of the Commission, it is worth to reproduce the ‘understanding’ in full: (a) Work on the topic will proceed in a manner so as not to interfere with relevant political negotiations, including on climate change, ozone depletion, and longrange transboundary air pollution. The topic will not deal with, but is also without prejudice to, questions such as: liability of States and their nationals, the polluter-pays principle, the precautionary principle, common but differentiated responsibilities, and the transfer of funds and technology to developing countries, including intellectual property rights; (b) The topic will also not deal with specific substances, such as black carbon, tropospheric ozone, and other dual-impact substances, which are the subject of negotiations among States. The project will not seek to ‘fill’ gaps in the treaty regimes; (c) Questions relating to outer space, including its delimitation, are not part of the topic; (d) The outcome of the work on the topic will be draft guidelines that do not seek to impose on current treaty regimes legal rules or legal principles not already contained therein. The Special Rapporteur’s reports would be based on such understanding.98 The understanding shaped the debate on the topic in the International Law Commission in the following years. Not necessarily by making it more legal. A considerable part of the discussion did not address the protection of the atmosphere, but the question whether a certain provision or sentence in a report or commentary was in breach of the 2013 understanding,99 and whether such a breach, or the 97 ILC, Yearbook of the International Law Commission 2013. Volume II, Part 2: Report of the Commission to the General Assembly on the work of its sixty-fifth session, UN Doc A/CN.4/SER. A/2013/Add.1 (Part 2) (2018), p. 79. 98 Id., p. 79. 99 See for example these instances only (!) from the 2016 session: ILC, Provisional summary record of the 3307th meeting; Held at the Palais des Nations, Geneva, on Tuesday, 31 May 2016, at 10 a.m., UN Doc A/CN.4/SR.3307 (8 July 2016), pp. 11, 12, 16, 17, 18, 19; ILC, Provisional summary record of the 3308th meeting; Held at the Palais des Nations, Geneva, on Wednesday, 1 June 2016, at 10 a.m., UN Doc A/CN.4/SR.3308 (1 May 2017), pp. 4, 8, 10, 11, 13, 16, 17, 18; Provisional summary record of the 3311st meeting; Held at the Palais des Nations, Geneva, on

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existence of the understanding was endangering the reputation of the Commission.100

6 ‘What Kind of Character Will That Commission Have?’ ‘What kind of character will that commission have?’101 Taking up Donald McRae’s question from the very beginning of the chapter, it seems the International Law Commission has become very legalistic. It avoids political positioning, carefully considers state interests, and is reluctant to reassess decades old international law. This enables cynical uses of international law by states, as it delegitimises efforts to establish limits to state sovereignty and state power. Yet, it seems increasingly uncertain whether such a Commission is still relevant in 2019. Classical international law is often unable to respond to contemporary challenges, such as climate change or the global commons, or perennial challenges, such as the protection of individuals. The more inflexible the approach to law is, animated by originalism, the more irrelevant law becomes for problem solving. A Commission acting as, exaggeratedly, mere registrar and echo of state interests on the one, and research group for legal histories on the other side, would become irrelevant with it. If international law, and with it the International Law Commission, should still matter, the Commission would have to, at least to some extent, lift the ideological veil of legalism. Currently, the Commission allows itself to be used by states to hide their political interest in a legal cover, constituting an additional risk for its reputation. Perplexingly, ending this practice would mean that the Commission must become more cynical in the dictionary-sense of being aware of the cynical, selfinterest-driven ways of states in using international law. This entails becoming aware of the political dimensions of (international) law and reflect on the role the Commission can play in shaping its development. There is no politically neutral law, as ‘[t]here never was a time before politics’,102 just going back further in time, whether to the founding of the UN, Hugo Grotius, or the Peace of Westphalia, will not reveal a more neutral law, but one shaped by the political forces of that time. It seems at least doubtful whether those laws are better suited for contemporary problems than ones devised today. This does not mean that the Commission members should become politicians in their own right, but it necessitates them to reflect on the

Tuesday, 7 June 2016, at 10 a.m., UN Doc A/CN.4/SR.3311 (8 July 2016), pp. 3, 4, 7, 8, 10, 16; Provisional summary record of the 3314th meeting; Held at the Palais des Nations, Geneva, on Monday, 4 July 2016, at 3 p.m., UN Doc A/CN.4/SR.3314 (28 April 2017), p. 19. 100 ILC, Provisional summary record of the 3308th meeting; Held at the Palais des Nations, Geneva, on Wednesday, 1 June 2016, at 10 a.m., A/CN.4/SR.3308 (1 May 2017), pp. 11, 13, 16, 17. 101 McRae supra note 1. 102 Kaufman (2014), p. 51.

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consequences of their work beyond legal doctrine, and to take the interests of states as what they are—politically driven.

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Schultz, T. (2014). Transnational legality: Stateless law and international arbitration. Oxford: OUP. Shklar, J. N. (1986). Legalism: Law, morals, and political trials. Cambridge: Harvard University Press. Siegel, J. R. (2017). Legal scholarship highlight: Justice Scalia’s textualist legacy. In: SCOTUSblog, 14 Nov 2017. Retrieved 12 November 2019, from https://www.scotusblog. com/2017/11/legal-scholarship-highlight-justice-scalias-textualist-legacy/ Sinclair, I. M. (1987). The International Law Commission. Cambridge: Grotius Publications. Solum, L. B. (2011). What is originalism? The evolution of contemporary originalist theory. Georgetown Law Faculty Publications and other Works. Retrieved 27 May 2020, from https://scholarship.law.georgetown.edu/facpub/1353 Tomuschat, C. (1994). Obligations arising for states without or against their will. In Hague Academy of International Law (Ed.), Recueil des Cours de l’Académie de Droit international de La Haye/Collected Courses of the Hague Academy of International Law (Vol. 248, pp. 195–374). Unger, R. M. (2015). The critical legal studies movement: Another time, a greater task. London: Verso. Voeten, E. (2007). The politics of international judicial appointments: Evidence from the European Court of Human Rights. International Organization, 61(4), 669–701. Voeten, E. (2008). The impartiality of international judges: Evidence from the European Court of Human Rights. American Political Science Review, 102(4), 417–433. Voeten, E. (2013). Politics, judicial behaviour, and institutional design. In J. Christoffersen & M. R. Madsen (Eds.), The European Court of Human Rights between law and politics (pp. 61–76). Oxford: OUP. von Bogdandy, A., & Venzke, I. (2013). The spell of precedents: Lawmaking by international courts and tribunals. In C. Romano, K. J. Alter, & J. Shany (Eds.), The Oxford handbook of international adjudication (pp. 503–522). Oxford: OUP. Weil, P. (1983). Towards relative normativity in international law? American Journal of International Law, 77(3), 413–442. West, R. (2003/04). Reconsidering legalism. Minnesota Law Review, 88(1), 119–158. Zarbiyev, F. (2012). Judicial activism in international law – A conceptual framework for analysis. Journal of International Dispute Settlement, 3(2), 247–278.

Konstantin Kleine is a PhD candidate at the Graduate Institute of International and Development Studies, Geneva, Switzerland, and a research assistant for the SNIS-funded research project Governing Plastic: The Global Political Economy and Regulation of Plastic Production and Pollution, based at the Global Governance Centre, Geneva, Switzerland.

The Added Value of the International Law Commission and Its Future Role in the Progressive Development and Codification of International Law Patrícia Galvão Teles Abstract This comment is a reply to Konstantin Kleine’s chapter ‘The International Law Commission as a Club of Cynics?’. In her reply, the author points out that she disagrees with the suggestion that the Commission is a ‘club of cynics’ arguing that the Commission’s mandate of codification and progressive development are the main reasons for its apparent restraint when it comes to the latter. The contribution further stresses the International Law Commission’s continuous relevance for international law-making and its changing range of activities such as the production of studies, guidelines and conclusions in addition to draft articles. Finally, the comment turns to concrete examples, particularly the work of the Commission on the new topic ‘Sea-level rise in relation to International Law’ to demonstrate the added value of this work and to show how the Commission can successfully address complex and contemporary legal challenges.

As a current member of the International Law Commission (for the quinquennium 2017–2021), it was hard to resist the invitation to comment on a chapter the partial title of which reads ‘The International Law Commission as a Club of Cynics?’. These remarks, however, are done purely on a personal basis and cannot be taken as an institutional position of the Commission or its members. Konstantin Kleine’s chapter is interesting and thought-provoking. Although I clearly disagree with the starting point of whether the International Law Commission is a ‘club of cynics’, several arguments in the chapter deserve consideration, especially those that concern the Commission’s contemporary and future work, what the Commission is and what it should be, and how it is perceived from the outside. I shall first address my disagreement with the characterisation of the Commission as a ‘club of cynics’ and how this relates to its mandate of codification and progressive development and the apparent prominence of the former. I shall then P. Galvão Teles (*) Autonomous University of Lisbon, Lisbon, Portugal © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_6

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conclude by making some remarks about the added value of having an International Law Commission and its future role.

1 The International Law Commission as a Club of Cynics? The first point I would like to make is that, in my view, international law is not cynical. It is its use and application that may be cynical. I am thinking here of cynicism as the use of international law for the mere promotion of national selfinterest, the use of double standards, and the use of international law for its abuse or circumvention. Contemporary international law, as it evolved in the last 75 years and based in the UN Charter’s principles, is a balanced and progressive body of law. Its main principles, from sovereignty and non-interference in domestic affairs to dispute settlement and the prohibition of the use of force and the respect for human rights and self-determination, are value-oriented and accepted by the international community as fundamental principles and the basis for friendly relations, as Resolution 2625 of the UN General Assembly, now turning 50 years old, has put it. The use and application that states and other international actors make of international law, however, may be cynical in the sense that it may be done for furthering national self-interest and prone to double standards. At the same time, in many instances, only lip service is paid to international law, and its grey areas are often explored to legally justify behaviour that can be questionable from the point of view of a rigorous and objective interpretation and application of existing international law. However, if one thinks of cynicism as the upholding of self-interest and having double standards, I could think of other international actors that may be more cynical than the International Law Commission and whose ‘cynicism’ would detract them from accomplishing their purpose and fulfilling their mandate. Looking at the history and practice of the UN Security Council and the Commission of Human Rights/ Human Rights Council, for instance, these bodies would be better characterised as a ‘club of cynics’ to borrow the expression used by the author. It may be true that the International Law Commission is sometimes perceived as not being transparent, setting its own agenda, not interacting enough with states/ Sixth Committee/UN General Assembly, working in an ivory tower, approaching topics from a too focused academic perspective, not being sensitive enough to the needs or not listening to the interests of states. In this sense, the term ‘cynical’ could also be used. While this perception is not always correct, it exists. For the Commission to remain relevant, the process for choosing future topics must be improved, especially at a moment where the codification work is nearly over and, increasingly, the International Law Commission embarks on exercises where the progressive development component will be greater if it is designed to address the current challenges in this complex and changing world, like migration, refugees, pandemics, drug

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trafficking, environment, and climate change, just to quote some of the challenges in the 2030 Agenda for Sustainable Development. Some of these current challenges, such as climate change or pandemics, have come recently even more to the forefront of international attention. I shall come back to this point at the end of this comment. In my perspective, the International Law Commission is not ‘cynical’ and should not become ‘more cynical’ as suggested in the chapter, but is rather ‘conservative’ by design or mandate, and this is due to its close and constant interaction with states, which is at the same time at the centre of its authority and reputation, while also curtails some of the liberty that other private institutions also dedicated to the codification and progressive development of international law, such as the Institut de Droit International and the International Law Association, may have. The view that the chapter takes that ‘legalism’ and ‘originalism’ are too present in the work of the International Law Commission in the sense, respectively, that ‘law and politics are two fundamentally different and separate things’ and that of a ‘static concept of international law’ do not seem, in my view, grounded in the work and practice of the Commission, since the International Law Commission is very aware of the political context that surrounds its work. Meanwhile, there are examples in the past and current practice where the Commission has even been accused of being too progressive, for instance when putting forward the concept of jus cogens in the 60s or, more recently, concerning the proposal for exceptions to immunity ratione materiae for international crimes committed by state officials.

2 The Mandate of Progressive Development and Codification of International Law The two main tasks of the International Law Commission, under Article 13(1) of the UN Charter, are defined in Article 15 of the Statute of the Commission in the following manner: (a) ‘progressive development of international law’ is used for convenience as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of states; and (b) ‘codification of international law’ is used for convenience as meaning the more precise formulation of rules of international law in fields where there has already been extensive state practice, precedent, and doctrine. The chapter argues that there is an imbalance in the work of the International Law Commission between ‘codification’ and ‘progressive development’, with a prominence of codification and a shyer approach to progressive development. It also refers to a possible trend that may lead the Commission to distinguish in clearer terms between codification and progressive development in its work. While the author may be right in his assessments, these questions, in my view, are more complex and do not necessarily have to do with some of the reasons pointed to

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in the chapter, namely on the composition of the Commission and the background of its members. If one looks carefully at the past practice of the International Law Commission, particularly the three of its most emblematic projects, such as Law of the Sea, Law of Treaties and Law of State Responsibility, the Commission has deliberately not qualified its own work as progressive development or codification on a systematic and thorough basis. In these three basic projects, in fact, it only seldom did it. When it did so, it did in a careful, cautious manner, not only because in practice the distinction between codification and progressive development is hard to perform in a rigorous way, but also because the Commission seemed conscious of the possibility of the continuing development of international law and the catalyst effect its work may have on that development. Compared with other topics that have also been in the past in the agenda of the International Law Commission, only on very few occasions has the Commission decided it was appropriate to make a clear statement on the status of the progressive development of a certain project or particular provisions. For instance, on the topic ‘Responsibility of International Organizations’, the draft articles adopted with commentaries in 2011 clearly state in Paragraph 5 of the General Commentary that [t]he fact that several of the present draft articles are based on limited practice moves the border between codification and progressive development in the direction of the latter. It may occur that a provision in the articles on State responsibility could be regarded as representing codification, while the corresponding provision on the responsibility of international organisations is more in the nature of progressive development. In other words, the provisions of the present draft articles do not necessary yet have the same authority as the corresponding provisions on State responsibility.

This is probably one of the only occasions where the International Law Commission clarified that the whole of the draft articles was rather in the nature of progressive development, and they did not have the same authority of those concerning state responsibility. The International Law Commission has privileged the adoption of good legal solutions that will stand the test of time and respond to the interests of the international community. In this regard, it has sought to avoid the risk of freezing the development of international law by over-classifying its work as one or the other track of its inseparable and interlinked mandate of progressive development and codification. While it might be true that in the current work of the Commission there is a bigger focus on codification rather than on progressive development, in my view this is a reflection of the nature of some of the topics on the agenda that are more adequately treated in the form of draft conclusions, principles or guidelines, rather than draft articles.

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3 The Added Value of the International Law Commission and Its Future Role The chapter questions whether the Commission is still relevant in the present and if it will remain so in the future. In my perspective, although some criticism and reflection are certainly warranted, the reply to these questions has to be positive. The so-called golden era of codification may well be over, but the International Law Commission remains relevant as ever. It has, however, to adapt itself to the changing circumstances, namely by finding—through its own reflections but also listening to the needs of the international community and of states—suitable future topics for its work. It also must remain open as to the final form of its output, since some of the topics may not be suitable for the most traditional outcome of draft articles. Nevertheless, the International Law Commission should not shy away from proposing draft articles if this best suits the topic. The recently completed draft articles on ‘Protection of Persons in the event of Disasters’ (2016) and ‘Crimes against Humanity’ (2019) are good examples of instances where the Commission has worked on draft articles with the potential to become international treaties if the states so wish. The International Law Commission remains in the unique and privileged position of being the body of experts to which the UN General Assembly entrusted the task of progressive development and codification of international law. If, as stated above, it has performed well its tasks in the past nearly seven decades and delivered a very substantial number of codification conventions—Law of Treaties, Diplomatic and Consular Relations, possibly State Responsibility—that are the backbone of today’s international legal order, it may now have to work more in areas where progressive development may be needed and sought by states, since the principal areas of international law have indeed been the object of codification by the International Law Commission. Both Article 13(1) of the UN Charter and the Statute of the International Law Commission refer in the first place to progressive development, which the Statute defines as the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.

It may be for the International Law Commission to consider engaging more in the progressive development if it receives positive signs from states in that direction, although sometimes it is difficult to draw the separating line with codification—or as also stated in the Statute, ‘the more precise formulation and systematization of rules of international law in fields where there already has been extensive state practice, precedent and doctrine’—as long as this is clearly identified in the International Law Commission’s work. It would be useful, in this respect, to reflect deeper on these two

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concepts of progressive development and codification, since they are not always clearly understood or in the same way. Another path that is worth exploring for the International Law Commission to remain relevant—and it is already doing so—is the production of studies, guidelines or conclusions that are very helpful for states, as it is the case more recently with the ‘identification of customary law’ and ‘provisional application of treaties’, or as it was the case in the past with the ‘guide on reservations’ of the study on ‘fragmentation of International Law’. This very study pointed out that the Commission should increasingly look for the avenue of ‘restatement’ of general international law in forms other than codification and progressive development – not as a substitute but as a supplement to the latter.

This last point should be emphasised: the task of filling in the gaps or clarifying previous law codified by the International Law Commission should not be a substitute to law-making of states, which seems to be a real temptation when there is an apparent reluctance of states to engage in law-making exercises. The International Law Commission should not substitute itself to states in international law-making and states should assert more their prerogatives and ownership of the formation of international law. Indeed, there is a good argument to be made that the Sixth Committee of the UN General Assembly has been unable in the last 20 years or so to take up its mandate as a law-making forum for states. The Sixth Committee has been called ‘a graveyard’ for the International Law Commission’s drafts, particularly concerning one of its most prominent achievements, the Draft Articles on State Responsibility, pending before the Sixth Committee since 2001 and the object of a technical rollover every three years. One could see this as a more ‘cynical’ approach than that coming from the Commission. Of course, this is mainly attributable to the practice of the Sixth Committee of working by consensus, which is an important practice in international law-making in matters fundamental to the international community—but which allows a vocal minority to block the wish of the silent majority to move forward. In any of the above scenarios, the interaction between the International Law Commission and the Sixth Committee remains a crucial one since the International Law Commission is at the service of the UN General Assembly—for it was created by the UN General Assembly to help this organ to exercise one of the functions that the UN Charter entrusted upon it, that is, the promotion of progressive development and codification of international law—and should work on topics that answer real needs of states, their interests and concerns. Sometimes it may be difficult to assess that real need because not all states are as vocal as others in commenting the International Law Commission work, but this is an area that requires continuing stimulation since the process of formation of international law should be as inclusive and plural as possible.

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Not only should states or groups of states be more vocal in expressing their needs in the realm of progressive development of international law, especially to address new challenges that are not, or not adequately, addressed by the current international legal order, but the International Law Commission also needs to engage more with states and the Sixth Committee to determine those needs. Listening to states’ and groups of states’ concerns and needs is a fundamental exercise if the International Law Commission were to remain relevant and effective. One good example of what the International Law Commission can do to remain relevant and address current legal challenges for the international community is the latest addition to its current programme of work in 2019 of the new topic ‘Sea level rise in relation to International Law’ with the creation of a Study Group of which I have the honour to have been appointed Co-Chair. One of the most important and pressing current global challenges is the issue of climate change and its adverse effects, namely those arising from rising sea-levels. This phenomenon of sea-level rise presents challenges to different areas of international law, such as those related to the law of the sea, statehood, and the protection of persons affected by sea-level rise. Sea-level rise from climate change is accelerating around the world, and the Intergovernmental Panel on Climate Change predicts that the average global sea-level could rise by up to a meter by 2100. Small island states, particularly low-lying ones, are at the front lines of sea-level rise. The impacts on communities are more varied and complex than is often assumed. Sea-level rise causes salinisation, which threatens crops and livelihoods, coastal erosion results in more destructive storm surges and natural disasters, and rising sea levels will submerge whole atolls. While low-lying islands are already feeling some of these impacts, in the coming years, more than 70 states are likely to be directly affected by sea-level rise, including continental states with coastal areas. While sea-level rise poses significant development, economic and environmental challenges, the phenomenon also involves complex questions in International Law, such as: What are the legal implications of sea-level rise upon baselines and, therefore, maritime zones that have been delimitated from those baselines? What are the consequences for statehood under international law should a territory of a state disappear? Or if an island becomes uninhabitable? What protection do persons directly affected by sea-level rise enjoy under international law? The need to analyse these questions from a legal point of view and to discuss possible solutions has thus led the International Law Commission to include the topic ‘Sea-level rise in relation to International Law’. It is proposed that the final outcome of the work of the International Law Commission be a Final Report of the Study Group on ‘Sea-Level Rise in relation to International Law’, accompanied by a set of Conclusions of the work of the Study Group. After the presentation of the Final Report of the Study Group, it could be considered whether and how to pursue further the development of the topic or parts of it within the International Law Commission or other fora.

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It is hoped that the work of the Commission on ‘Sea-Level Rise in relation to International Law’, which so far has benefited from a very high level of state support and interest, can contribute to the International Law Commission’s capacity to address complex and contemporary legal challenges that are crucial for states and the international community, and thus for this important institution to remain relevant in the future. Patrícia Galvão Teles is Professor of International Law at the Autonomous University of Lisbon, Portugal, and Member of the International Law Commission.

From Speaking Truth to Power to Speaking Power’s Truth: Transnational Judicial Activism in an Increasingly Illiberal World Daniel Quiroga-Villamarín

Abstract Since the early 1990s, constitutional rights—and international human rights—have been mobilised to transform structural conditions of injustice before courtrooms all around the world. From San José to Karlsruhe, Strasbourg to New Delhi, in both the Global North and South, judges have been at the forefront of the establishment of a new jus gentium common to all humankind. Implicit in this narrative, however, lies the idea that transnational judicial activism has inherent progressive outcomes: the rule of law, human rights, or liberalism tout court are the necessary products of judicial dialogue. In this chapter, I argue that this implicit premise, which emerged from the naïveté of the post-Cold War period, can no longer hold in an increasingly illiberal world. Thus, I highlight that judicial activism can also favour illiberal outcomes. Long before liberals and disgruntled socialists turned to judges to protect human rights, courts had been a bulwark of the status quo. The controversial Lochner case before the US Supreme Court (1905) bears witness to the fact that courts not only have the potential to speak truth to power but also to speak power’s truth.

1 Introduction Judicial dialogue has now been recognised as a fundamental element of contemporary global governance. Since the early 1990s, national judges have increasingly embraced international law and comparative constitutional law in their decisions.

I would like to thank René Urueña, Fuad Zarbiyev, Stefania Di Stefano, Andrea Bianchi, Jorge González-Jacome, Andreas Paulus, Juan Amaya-Castro, John Tobin, Emma Nyhan, Margaret Young, Hilary Charlesworth, Ana Luísa Bernardino, Lena Riemer, Raphael Schäfer, Mark Tushnet, and Katharine Young for their comments and conversations. Only I, however, should be held responsible for this chapter’s shortcomings. D. Quiroga-Villamarín (*) Graduate Institute of International and Development Studies (IHEID), Geneva, Switzerland © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_7

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Moreover, supranational judges, and even international quasi-judicial bodies have also engaged in constructive dialogues with national adjudicators to make their judgments more enforceable elsewhere. Of course, the USA is merely the exception that proves the rule:1 from San José to Karlsruhe, Strasbourg to New Delhi, in both the Global North and South, judges have been at the forefront of the establishment of a new jus gentium common to all humankind.2 Implicit in this narrative, however, lies the idea that transnational judicial activism has inherent progressive outcomes: the rule of law, human rights, and democracy are the necessary products of these new forms of judicial communications. Judicialisation, to paraphrase Joseph H. H. Weiler, can only reaffirm this ‘holy trinity’ of liberal (European) values.3 This implicit premise which emerged from the naïveté of the first years of the post-Cold War era4 finds itself questioned in our increasingly illiberal world.5 The centre, to cite W. B. Yeats’s poem The Second Coming ‘cannot hold’.6 Often, the usual illiberal response has been to confront courts—both national and international—for their entanglement with the creation of the (neo)liberal ‘new world order’.7 In this chapter, I will argue that scholars of courts and tribunals should heed to another illiberal reaction: using the discursive tools invented by liberal internationalism to advance illiberal objectives. In a similar way as US President Donald Trump has used the legal toolkit of imperial ‘endless war’ created by his liberal predecessors,8 illiberal judges are now embracing international law to further their agendas. The far right has rediscovered its own history: long before liberals and disgruntled socialists turned to judges to protect human rights, courts had been a bulwark of the status quo.9 The controversial Lochner case before the US Supreme Court (1905) bears witness to the fact that courts not only have the potential to speak truth to power but also to speak power’s truth.10

1

Waters (2010). Cançado-Trindade (2010); Franco-Ferrari (2019). 3 Weiler (2019), at minutes 1:31–1:52 in the video. 4 Fukuyama (1989). 5 Ikenberry (2018); Guilfoyle (2019). 6 Yeats (1996), p. 187. 7 Krisch (2014), Madsen et al. (2018), pp. 193–196. 8 Moyn (2017). 9 There are many ways to categorise the rising patterns of illiberal backlash in—and beyond— international law. Koskenniemi (2019) frames it as a cultural backlash of white nationalists against the values of May ‘68, whereas Orford (2019) urges us to dissect the ‘material roots’ of populism. Following Engels (2017), I suggest an ahistorical definition would be of little use, hence, I will use the term ‘illiberal movements’ to refer to the rising trend of social and political organisations that have been taking power throughout the world (but in the core since 2016) to challenge the post1989 settlement, which they deem unjust. This usually refers (but is not limited) to religious fundamentalists, men’s rights activists, racial supremacists, neofascist political parties, or any other ‘populist’ revolts on the right. 10 Kmiec (2004), p. 1462. See further US Supreme Court, Lochner v. New York [1905] 198 U.S. Reports 45. 2

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In what follows, I will briefly review (Sect. 2) the triumphalist narrative on the twin virtues of judicialisation and constitutionalism in the contemporary cosmopolitan imagination. I will show that most accounts of transnational judicial dialogue have implicit or explicit assumptions about the alleged liberal outcomes of judicial activism. Then, I will address (Sect. 3) the emerging patterns of backlash(es) against international law. I will also show (Sect. 3.1) that most international lawyers have framed this issue as a matter of ‘us against them’: we, the cosmopolitans, vs. them, the nationalists. Contrary to this assumption, I will suggest that the illiberal rebels, while indeed often staunchly nationalist, are not shy to engage with the ‘international’ when it suits them. Thus, we should be beware of (Sect. 3.2) abusive constitutionalism in international law: that is, the use of constitutional language for illiberal objectives. I will close with some (Sect. 4) concluding remarks on the future of strategic litigation by the far right.

2 Constitutionalism and Judicialisation in the Contemporary Cosmopolitan Imagination When we look back, we will probably remember the period from 1989 to 2001 as the age of global optimism.11

One common narrative in the history of the discipline of international law is that the dark past of selfishness, conflict, and bilateralism eventually was superseded by a bright present in which cooperation, multilateralism, and peace shine, leading eventually to a future of perpetual peace and good global governance.12 This narrative—which, following David Kennedy13 I will name the ‘Cosmopolitan Dream’—has often had distinctively ‘German’ flair, insofar as it understands the field of international law through the ‘vocabularies of public law’, be it administrative or constitutional law.14 For this narrative, bridging this gap between the utopia of ‘community interest’ and the crude apology of egoistic state-interest has been one of the founding traumas for our discipline.15 As the Berlin wall crumbled, cosmopolitan dreamers found themselves unshackled from the iron cage of the Cold War. Suddenly, it seemed that the time for the liberal international legal order—dreamt since 1945, 1873, or even 1648— had finally come. International law, at last, was going to develop to new heights progressively.16 Thus, the nineties saw the emergence of a myriad of legal 11

Koh (2003), p. 318. See Fastenrath et al. (2011). 13 Kennedy (2005), p. 645; Orford (2003), pp. 186–219. 14 Bianchi (2016), p. 45. The exception that proves the rule is Teubner and Lescano ‘social systems’ approach, which resembles more a ‘private international law’ tradition, cf. Klabbers (2009), p. 28. 15 Koskenniemi (2005). 16 Kapur (2006), pp. 668–673; Skouteris (2019). 12

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frameworks and the proliferation of international courts and tribunals that attempted to set the parameters for the global rule of law.17 For all of our past historical benchmarks and geological foundations, contemporary international law truly began in the 1990s.18 The events, characters, and trends before that are just history: confined to the past; sad remnants of the struggles lost and won;19 a tragic inheritance of the limited success and resounding failures of our forefathers.20 Following Duncan Kennedy’s piece on the Three Globalizations of Law, I argue that we should understand the cosmopolitan dream as a form of (international) legal consciousness.21 This cosmopolitan consciousness—which was forged in the crucible of this ‘age of global optimism’—came to determine the scope and parameters of contemporary legal thought in international law.22 In fact, the cosmopolitan dream should be understood in the backdrop of Kennedy’s third globalisation, which begins in 1945, accelerated in the 70s, but only came into full speed in the 1990s.23 And, as Christopher Tomlins has argued, this third globalisation should be studied as the adaptation of legal parole to the rise of neoliberal economics as a hegemonic horizon in—and beyond—legal consciousness.24 As this chapter does not offer us room to fully review the connecting veins between neoliberalism and (international) law in the contemporary legal consciousness,25 I will merely review two twin stars that have guided contemporary cosmopolitan imagination: constitutionalism and judicialisation.26 Most of the existing literature on judicial dialogue and strategic human rights litigation cannot be understood without reference to the magnetic field created by these two poles.27 Constitutionalism, of course, means different things in different places. Christine Schwöbel duly noted that there is no single recognized global constitution; rather, there are a number of visions of what a global constitution is and should be and what is spurring constitutionalization in the international sphere.28

Despite its ambiguous content, I suggest ‘constitutionalism’ could be understood as a wide-tent of approaches that draw from the principles and the techniques of domestic constitutionalism to reimagine the international legal order.29 One could 17

Krieger and Nolte (2016), p. 6; von Bernstorff (2019). Köppen and Berger (2016). 19 Tomlins (2018), pp. 365–386. 20 Khan (2016), cited in Bianchi (2016), p. 210. 21 Kennedy (2005), pp. 19–73. 22 Koskenniemi (2017), pp. 199–218. 23 Kennedy (2005), pp. 21, 63–73. 24 Tomlins (2015), p. 10. See further Desautels-Stein and Tomlins (2017). 25 Brabazon (2017), Gill and Cutler (2014). 26 Gill (1998). 27 Di Muzio (2014). 28 Schwöbel (2010), p. 612; Schwöbel (2011). 29 Peters (2019). 18

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signal at least two common assumptions: (i) the presumption that international law is, indeed, a system; (ii) and that such this system acts as if it were an order of public law.30 Thus, in the cosmopolitan imagination, constitutionalist international lawyers must veil to preserve the unity, hierarchy, and coherence of this universal order. Nous sommes, to paraphrase Pierre-Marie Dupuy, les gardiens de l’unité.31 Constitutionalism, as any other political project, is a product of its time. As Anne Peters herself recognised, this tradition is a consequence of the new global political constellation (the emergence of a ‘New World Order’ with the expectation of a global spread of democracy and rule of law after 1989), and a reaction to the fact that international law has become stronger, denser, more important, and thus more ‘intrusive’ on national politics.32

Of particular interest to our discussion is constitutionalism’s aspiration to limit power through law.33 To cite two leading figures, Anne Peters reminds us that, historically, ‘[t]he basic purpose of the constitution was to subdue political power (the prince) to the law, hence to create a government of laws, not of men’.34 On the other hand, Jan Klabbers suggests that constitutionalism typically aims to tame man’s quest for power and aims to do so by providing legal limits. It stands to reason, then, that individuals trained in the law are deemed most suitable to this task.35

At its best, constitutionalism offers a retreat from politics: it safeguards a core of values and procedures that, once enshrined, cannot be modified by subsequent political disputes. At its worst, as Claire Cutler has shown, it creates global and local limits to democracy, entrenching a set of policies beyond contestation.36 That is, after all, the paradox of constitutionalism, it invokes unlimited constituent power only to restrain it.37 In any case, constitutionalism implies a flight from politics, a displacement from a government of men to a government of law(yers?38). But who, if not political actors, will take decisions then? Constitutionalism, of course, has a clear answer: judges. Judges are sovereign insofar they separate the normal ‘business as usual’ politics and the exceptional constitutional matters: in the cosmopolitan dream, the judiciary (instead of the prince) decides on the exception.39 Hence, the judicial function serves as the anchor of the constitutionalist imagination.40 As Hersch Lauterpacht put it, 30

Bianchi (2016), pp. 44–71. Dupuy (2000), p. 205. In English, ‘we are the guardians of unity’. 32 Peters (2006), p. 607. 33 Kaleck (2018). 34 Peters (2006), p. 682. 35 Klabbers (2004), p. 33. 36 Cutler (2015). 37 Galligan (2008). 38 Chioni Moore (1991), p. 766. 39 Schmitt (2005). 40 Scheinin et al. (2016). 31

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‘judicial activity is essentially the last link in the chain of the crystallization of the rule of law’.41 Unsurprisingly, constitutionalism fostered a triumphalist narrative of judicialisation in both comparative constitutional law and international law. Every major scholarly intervention invariably has a chapter on the role of judicial institutions in the global rule of law.42 At the domestic level, ‘new constitutionalism’ thrived as Samuel Huntington’s third wave of democratisation43 swept around the world, creating new liberal democracies (and constitutional courts).44 In Ran Hirschl’s words, ‘there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one’.45 Along these lines, this author has coined the term juristocracy, to refer to the ever-growing judicialisation of ‘mega-politics’.46 Special attention should be paid to Latin America, as [n]o region has been more active in this respect [. . . due to the] billions of dollars in international aid [that have flowed] into the region in support of reforms to insulate and strengthen judges.47

In this corner of the world, new constitutionalism provided the foundations for the idea of a new jus constitutionale commune, which gave the infant and frail domestic courts of post-authoritarian countries newfound legitimacy through the persuasive use of foreign jurisprudence.48 Suddenly, each domestic judiciary was at the forefront of a global struggle to promote the rule of law not only in their own national frontiers but at the regional scale.49 Primus inter pares, of course, stood the InterAmerican Court of Human Rights, which—with its ‘control of conventionality’ doctrine—became a supranational constitutional court for the whole region.50 On the international plane, the early 1990s also saw a ‘wave of judicialization, [which] resulted in the creation of several important international trade, investment, criminal, and law of the sea courts and tribunals’.51 From the ad hoc tribunals52 and the establishment of the International Criminal Court,53 to the explosion of bilateral investment treaties and investment panels,54 passing through the creation of the 41

Lauterpacht (2000), p. 102. Ulfstein (2009); Çali (2017). 43 Huntington (1993). 44 Györfi (2016), p. 12. 45 Hirschl (2004), p. 71. 46 Hirschl (2007, 2011). 47 Brinks and Blass (2017), p. 297. 48 von Bogdandy (2015). 49 von Bogdandy et al. (2017). 50 Torelly (2017); Urueña (2019). 51 Kingsbury (2012), p. 223. 52 Bass (2000). 53 Bosco (2014). 54 Miles (2013); Morosini and Ratton-Sanchez (2018). 42

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World Trade Organization (and its ‘jewel in the crown’: the dispute settlement system55) to the International Court of Justice’s expansion of the power to indicate provisional measures after the LaGrand case (2001).56 In the last years, international law has experienced a veritable judicialisation.57 Following Fuad Zarbiyev, I will use the term judicialisation in broad terms, including categories of international dispute settlement that are not strictly judicial.58 For the cosmopolitan imagination, this ‘judicial turn’ can only be good news: after all, it shows the ‘deepened’ legalisation of world politics.59 The multiplication of international courts and tribunals offers immense opportunities for the expansion and development of contemporary international law.60 Of course, the proliferation of voices in the international legal choirs might lead to discord or disharmony: alas, the specter of fragmentation.61 Constitutionalists, however, were not afraid, as they were certain that constitutional values and techniques might save the day.62 Constitutional doctrines, as applied by the rising cohorts of international judges, would lead to converging judgments that would uphold the coherence of the international legal order.63 In this vein, Andreas Paulus has argued that the communitarian international judge faces even a more heroic task than the individualist Dworkinian Constitutional judge.64 She must strike a balance between state and community interests, to find a common ground between different cultures and religions, or even between professional sensitivities in different issue areas, by pointing to commonly agreed standards that go beyond the self-interest of the parties and the particularities of the functional sub-system in which the judge operates.65

Sitting behind the bar, the international judge sits as the living embodiment of the international community.66 Willingly or reluctantly, she acts on its behalf.67 In this capacity, she is given ample powers to find a legal solution that will not only apply the existing law but also push it towards its progressive development in a way that is acceptable for the international community as a whole. Implicit in this narrative, 55

Elsig et al. (2012). ICJ, LaGrand Case (Germany v. United States of America), Merits, Judgment of 27 June 2001, ICJ Rep 466; Miles (2017), pp. 77–81. 57 Føllesdal and Ulfstein (2018). 58 Zarbiyev (2012), p. 49. 59 Hernández (2014). 60 Alter (2014), pp. 68–111. 61 Koskenniemi and Leino (2002), pp. 553–579. 62 Peters (2016), pp. 1011–1032. 63 Young (2012); Andenæs and Bjørge (2015). 64 Paulus (2010), p. 220. 65 Id., p. 224. 66 Statement of the President of the [ICTY] – Judge Theodor Meron. November 17, 2011. http:// www.icty.org/en/press/statement-president-tribunal-–-judge-theodor-meron. Accessed 10 June 2019. 67 Hernández (2013). 56

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however, lies the notion that constitutionalisation and judicialisation can only lead to the promotion and protection of the liberal values on the post-1989 settlement.68 Andreas Paulus’ learned judge can only act on behalf of liberal values: human rights, free trade, environmental protection, or the global rule of law. This assumption underlies most literature on transnational judicial activism. Since Anne-Marie Slaughter’s pioneer piece on transjudicial communications,69 there has been extensive discussion on ‘judicial dialogue’, a term both elusive and appealing.70 While for some, this notion entails nothing else than courts citing decisions from other jurisdictions,71 for others, dialogue implies a wider, thicker, and substantive notion of judicial cooperation. In her later work, Anne-Marie Slaughter went on to declare the existence of a ‘community of courts’ that united like-minded progressive lawyers and judges across national borders.72 Others have criticised the notion of dialogue, showing that, in reality interactions between judges are much less horizontal and conversation-like that expected73 and rightly highlighted that the word dialogue itself entails positive, cosmopolitan, and even Habermasian or Kantian connotations.74 In any case, most commentators agree that this process is beneficial for the global rule of law,75 if not outright inevitable.76 Eyal Benvenisti even argues that, contrary to what some illiberal critics claim, judicial dialogue is not anti-democratic, but a way for courts to ‘reclaim’ democratic legitimacy.77 In sum, constitutionalism, judicialisation, and judicial dialogue were products of the Zeitgeist of liberal hegemony, in a period marked by high hopes on the promises law and rights in contemporary global governance. Sadly, the days in which we could assume that judges and courts would always be staunch allies for liberal causes are long gone. As the tide turns, however, and the (neo)liberal consensus crumbles, there seems little space left to the legal transnational advocacy networks that promoted litigation. Provocatively, I would like to suggest that transnational advocacy networks might be at their best a powerless companion to neoliberal politics,78 and at their worst, perhaps part of the problem.79 These networks are merely part of a wider approach of center-left responses to globalisation: what I would like to call the Academic-NGO-Courts Complex. According to this strategy, the law is the best—if not the only—instrument for social change and must be mobilised from the three Cs:

68

von Bogdandy and Venzke (2014). Slaughter (1994). 70 Zoethout (2014). 71 Gelter and Siems (2013). 72 Slaughter (2003, 2005). 73 Claes and De Visser (2012). 74 Pasquet (2017), p. 468. 75 McCrudden (2000). 76 Tushnet (2010). 77 Benvenisti (2008). 78 Moyn (2014). 79 Kennedy (2005), pp. 3–35. 69

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Courts, Classrooms, and Civil Society. But, as the rising populist Right dries funding for progressive NGOs,80 purges law schools, and packs the courts, one can only wonder if transnational advocacy networks can still count that the ‘right people’ with the ‘right biases’81 will still be in place when their day in court finally comes. As Goya reminds us, the sleep of reason produces monsters.82 And now, as Antonio Gramsci once said, ‘the old world is dying, and the new world struggles to be born, now is the time of monsters’.83

80

Or, even worse, create their own right-wing NGOs and transnational advocacy networks, see Urueña (2018), pp. 418–420. 81 Koskenniemi (2007), p. 19. 82 As Manderson reminds us, ‘[i]mages are prime sites of law’s theory and law’s praxis. They are also, on occasion, prime sites for the critique of law, too.’ Manderson (2019), p. 16. 83 Cited in Žižek (2010), p. 95.

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Francisco Goya. El sueño de la razón produce monstrous [The Sleep of Reason Produces Monsters] (1791–1799). Aguatinta sobre papel. Museo del Prado (Madrid, Spain).84

3 The Sleep of Reason Produces Monsters: Backlash(es) Against International Law 3.1

Us Against Them: Cosmopolitanism vs. Nationalism

As it is well known, liberal juristocracy is a highly contentious issue and is not without its discontents.85 Critics argue that a board of unelected judges cannot take highly political decisions and should defer to the democratic legitimacy of the executive power or of parliament.86 This line of critique only carries more weight when applied to international judges, who are often seen to be even farther away from the ‘people’ they are governing.87 The government of judges—even in the name of the rule of law—has often been accused of suffering from a democratic deficit. Eyal Benvenisti attempted to argue that judges are actually ‘reclaiming democracy’88 in a highly globalised world, instead of taking it away from the people or the other branches of government. Despite his pleas, some voters all around the world have been unconvinced, revolting against national and international courts. The recent—and unsuccessful—attempt in Switzerland to block ‘foreign’ judges is but the latest case of a long trail of illiberal denunciation of transnational judicial dialogue.89 This illiberal response is all too well known for international lawyers: it is now an established genre of contemporary scholarship: backlash(es).90 When the illiberal revolt started years ago in the backyard of Empire, Eastern Europe, and Latin America,91 it did not seem to trouble international lawyers at the core. Cosmopolitan 84

I would like to thank the Museo del Prado for giving me the permission to reproduce this print for academic purposes on 30 October 2019. 85 Hirschl (2007). 86 Kramer (2006). For an introduction, see Zarbiyev (2012), p. 247 fn. 2. See also the contributions by Caroline Lichuma, ‘In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism’, and by Dominik Steiger, ‘In International Law We Shall Trust – (Even in) The Case of Economic and Social Rights’, in this volume. 87 Sellers (2018). 88 Benvenisti (2008). 89 Swiss Confederacy, Self-Determination Initiative, 22 November 2019. https://www.admin.ch/ gov/en/start/documentation/votes/20181125/self-determination-initiative.html. Accessed 11 June 2019. 90 Voeten (2019). 91 Aren’t these regions, as Hobsbawm has said, laboratories of historical change? See Hobsbawm (2016), p. 489. On Eastern Europe, see Avbelj (2016).

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dreamers, avid readers of John Rawl’s Law of Peoples,92 simply dismissed this as the immature tendencies of the indecent, non-liberal peoples and their outlaw states. However, when in 2016, the populist revolt came home to the Northern Atlantic (with Brexit in the UK and Donald Trump’s election in the USA), international lawyers quickly came to terms with the far right’s challenge against the cosmopolitan imagination.93 From the age of global optimism, we found ourselves in the age of global anger.94 Suddenly, the cherished agenda of the 1990s found itself under siege.95 Illiberal movements rallied against multilateralism and globalism and targeted courts for their involvement in the creation of the neoliberal world order. All judges were potential enemies of the people.96 The Tribunal of the Southern African Development Community’s chronicle of a death foretold stands like a warning to all international courts and tribunals that defy the rising populist wave.97 Under siege, most international lawyers decided to strike back. Framing the issue as a matter of us (the cosmopolitan dreamers) vs. them (the backward nationalist populists),98 lawyers have turned to litigation to defend the rule of law, seeing the populist revolt as merely a setback. Perhaps their manifesto is Harold Koh’s Trump and International Law, which highlights the many ways in which the ‘resistance’ is winning over Donald Trump.99 Another clear example can be found in Tom Ginsburg’s recent Lauterpacht Memorial lectures, where he posited the dichotomy between us, the democrats and internationalists, vs. them, the authoritarian Westphalians.100 Sadly, international lawyers have focused so much on this typical illiberal strategy and on the dichotomy us-good vs. them-bad, that we have paid scant attention to another possible avenue for backlash: using the discursive tools invented by liberal internationalism to advance illiberal objectives. More often than not, illiberal governments have understood that instead of attacking courts, they might as well pack them.101 The career of Judge (and now Minister) Sergio Moro in Brazil, for instance, is a clear example of how illiberal movements can use the judiciary as a weapon in their favour.102 In other words, contrary to cosmopolitan assumptions, the tools, discourses, and doctrines by liberal constitutionalism can further agendas, 92

Rawls (2003). See further Paulus (2010), footnote 52 at p. 220. Sandel (2018). 94 Mishra (2017). 95 Koskenniemi (2019). 96 Lacey (2019), pp. 4–5. 97 Nathan (2013). 98 Schwöbel-Patel (2019). 99 Koh (2019). 100 https://upload.sms.csx.cam.ac.uk/media/2937771. Accessed 26 June 2019. 101 Court packing refers to the practice of executive selection of judicial appointees according to the political inclinations. Historically, it is was coined to critique Franklin Delano Roosevelt’s expansion of the US Supreme Court during the new deal reform. However, left commentators have argued for the retrieval of similar forms of judicial election. See Donegan (2019). 102 Hübner Mendes and Benvindo (2019). 93

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which, in principle, seem to contradict the lofty dreams of the 1990s.103 Perhaps the dreamers will soon find themselves in a nightmare of abusive constitutionalism and illiberal judicialisation in global governance. Philip Alston, as well as César Rodríguez-Garavito and Krizna Gomez have urged human rights advocates to broaden their playbook and reevaluate their strategies; perhaps it is time for us to notice that illiberal movements can do that too.104

3.2

Abusive Constitutionalism in International Law

In comparative constitutional law, David Landau has coined the concept of ‘abusive constitutionalism’ to provide explanations of why illiberal rulers—from Hungary to Egypt, and recently, Brazil and the USA—seem to find constitutional law as an enabler rather than as a restriction.105 This expression, of course, has many flaws. First, it presumes that liberal constitutionalism is not abusive or authoritarian, to begin with.106 In any case, it seems that abusive constitutionalism might permit us to understand something that has been occurring in international law, and that—as things currently stand—it is only prone to increase: the use of liberal techniques for abusive outcomes. In what follows, I will not make an exhaustive list of scenarios, but rather mention some leading cases of illiberal judicialisation/abusive constitutionalism. Of course, a careful reader will surely also think of many examples of continued progressive litigation or will dismiss the small number of abusive cases as statistically insignificant.107 Alternatively, she may discuss the exact content and scope of what is means to uphold ‘liberal values’ in each of my examples, exploring diverging (and reasonable) ‘liberal’ interpretations.108 To be sure, my argument is neither quantitative nor empirical. Rather, I am interested in raising a theoretical question regarding the blind spots and biases of the cosmopolitan imagination, rather than proving a causal link between illiberal movements and judicial outcomes.

3.2.1

Genocide Denial at the ECtHR

A first example of the ‘abuse’ of global constitutionalism can be found in the controversial decision Perínçek v. Switzerland, delivered by the European Court of Human Rights.109 In this case, a Turkish politician was convicted in Switzerland

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Werneck Arguelhes (2017). Alston (2017); Rodríguez Garavito and Gomez (2018), pp. 11–53. 105 Landau (2013). See further Graber et al. (2018). 106 See further González-Jácome (2017). 107 I thank Lena Riemer for raising this point. 108 I thank Jorge González-Jácome and Mark Tushnet for raising this point. 109 ECtHR, Perínçek v. Switzerland (GC), App no 27510/08, 15 October 2015, para. 280. 104

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after delivering certain remarks in Lausanne, which trivialised the Armenian genocide. After exhausting local remedies, Dr. Perínçek submitted this case to the European Court of Human Rights, which in 2013 (lower chamber)110 and 2015 (Grand Chamber) upheld the applicant’s right to freedom of expression, protecting his right to deny the existence of the Armenian Genocide. While this chapter does not offer me enough space to review the criticisms leveled against this judgment,111 it shows how the European Court of Human Rights served to advance an illiberal objective. Contrary to cosmopolitan expectations, it shows how the Court can be used to uphold genocide denial. While one could play the role of the devil’s advocate and argue that protection from censorship is always a liberal value, it seems difficult to defend (vis-à-vis the 1989 consensus) that one can create a hierarchy between the Shoah and the Armenian Genocide in the way the Court did.112

3.2.2

Abortion in Colombia

As a second example, I will refer to recent debates about abortion at the Colombian Constitutional Court to show how cross-citation of international and foreign law can often serve to curtail rights (even if it pays lip service to them at the same time). This may seem parochial at first, but it is worth noting that this Court has been recognised as one of the leading ‘neo-constitutional’ tribunals of the Global South.113 Not in vain, some of its leading judgments were recently translated into English to provide wider global judicial communication based on Colombian constitutional case law.114 Abortion has always been a highly contentious issue in Colombia. The Constitutional Court—which anecdotally, sits in a hall crowned with a crucifix at its apex—permitted abortion in three limited cases in 2006, causing a public uproar.115 Anchoring its decision in comparative constitutional law and international law, the Court ruled that abortion would not be punished as a criminal offence when (i) the life of the mother was in danger, (ii) the fetus had a grave malformation and would be unable to sustain life, or (iii) when the pregnancy was the product of sexual violence. The illiberal backlash, at first, followed the usual pattern.116 The Court was accused of disrespecting the institutional competence of congress, and of imposing an elitist decision over millions of god-fearing Colombians. Moreover, conservative legal experts argued that the Court had misapplied the Colombian doctrine of sources, by using norms that were not binding (such as General Recommendations of the

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ECtHR, Perínçek v. Switzerland, App no 27510/08, 17 December 2013. Luigi (2016); Garibian (2016). 112 ECtHR, Perínçek v. Switzerland (GC), App no 27510/08, 15 October 2015, para. 212. 113 Bonilla-Maldonado (2013). 114 Cepeda-Espinosa and Landau (2017). 115 Colombian Constitutional Court, Judgment C-355, 10 May 2006 (delivered by Justices Jaime Araújo & Clara Vargas). The most relevant paragraphs might be found translated in id., pp. 73–82. 116 Niño and Rincón (2018). 111

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Committee on the Elimination of Discrimination Against Women) over the text of the Constitution. But after years of plotting against the court’s decision without much success, illiberal movements have turned to new—and perhaps, more powerful—ways of curtailing reproductive rights. In 2017, Cristina Pardo, a jurist with close ties to the ultra-catholic Opus Dei association was elected to the bench, followed shortly by the first evangelical magistrate, Carlos Bernal, in Colombia’s history. Thus, when a case about abortion came before the Court, these new justices attempted to shape the Court’s jurisprudence in ways that reflected their understanding of the right to life. Surprisingly as it may seem, international law has found its way into their legal arguments.117 Pardo, for instance, has attempted to curb the right to abortion of the second case, arguing that this exception may promote discrimination against people with disabilities.118 Thus, instead of disregarding international law, Pardo has rather embraced it, basing her decision on elements of comparative constitutional and international law on disability rights. The majority disagreed with Pardo, and she was removed from the position of delivering the Court’s opinion. Her dissenting opinion still relied on strategic use of comparative and international law to achieve the illiberal goal of limiting abortion.119 For instance, she referred to the constitutions and legislation of 15 states to conclude that Colombia should impose additional restrictions on reproductive rights.120 Moreover, she referred to the UN Convention on the Rights of Persons with Disabilities (and to the work of its Committee), to argue that the current law failed to uphold international standards on disability rights.121 Abortion was saved, for now. But, as the tide changes, and more conservative judges are elected (both within and outside of Colombia), one can only wonder if the nexus between judges and cosmopolitan-liberal values will still hold against the dam failure of the liberal consensus. It seems uncertain that judges would continue to speak truth to power.

3.2.3

Civil Society Interventions on the Right to Life

Now, I will focus on the NGO interventions to the recently adopted UN Human Rights Committee’s General Comment on the Right to Life. Since drafting began in 2015, there have been many sensitive issues that have warranted extensive attention from both states and civil society. In the cosmopolitan imagination, this wide

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Bernal follows the traditional illiberal response and advocates for further judicial restraint, as he sees that ‘transformative constitutionalism is an oxymoron disguising as an illusion’. See Bernal (2018). 118 Colombian Constitutional Court, Judgment SU-096, 17 October 2018. 119 Id., Dissenting Opinion of Justice Pardo Schlesinger (salvamento de voto). 120 Id., Sect. 1.3. The jurisdictions analysed were Spain, France, Germany, Austria, Japan, Chile, USA, India, South Africa, Mexico, Indonesia, Canada, Australia, and Turkey. 121 Id., Sect. 2.

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participation could only be a good thing.122 After all, the increased engagement of civil society (bypassing the states and the international Hofmafia123) could only be a positive development.124 However, in this chapter, I would like to focus on the interventions submitted by illiberal NGOs regarding abortion.125 Although many comments were submitted by the usual suspects (law clinics, liberal human rights NGOs, victims’ organisations), I would like to highlight the comments delivered by religious and conservative groups. Thus, along Open Society and Amnesty International, we also find comments submitted by the Asociación La Familia Importa [Family Matters],126 Asociación Sí a la Vida [Yes to Life],127 the transnational alliance Civil Society for the Family,128 and the Priests for Life movement.129 Illiberal movements from all latitudes took this opportunity to further their own agendas to limit reproductive rights. Increased participation from civil society does not correspond exclusively with liberal outcomes.

3.2.4

The New Trump Commission on Unalienable Rights

In late May 2019, the Trump Administration created a new Commission on Unalienable Rights, which has the purpose of advising the Secretary of State on ‘international human rights matters’.130 According to its Charter (which has been credited to Robert George, a conservative law professor who recently co-edited the Cambridge Companion to Natural Law131), this commission has the task to ‘provide fresh thinking about human rights and [propose] reforms for human rights discourse where it was departed from our nation’s founding principles of natural law and natural rights’.132 Against my own wishes, I must agree with Eric Posner’s affirmation that this Commission plays a crucial role in Trump’s attempt to reinterpret

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Bianchi and Peters (2013). Allott (2009), pp. 380–398. 124 Eilstrup-Sangiovanni (2018). 125 UN Human Rights Committee, Call for Comments on Article 6 – Right to life. https://www. ohchr.org/EN/HRBodies/CCPR/Pages/GC36-Article6Righttolife.aspx. Accessed 17 June 2019. 126 https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/ AsociaciónLaFamiliaImporta.docx. Accessed 17 June 2019. 127 https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/AsociaciónS%C3% ADalaVida.docx. Accessed 17 June 2019. 128 https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/C_Fam.docx. Accessed 17 June 2019. 129 https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/PriestsForLife.docx. Accessed 17 June 2019. 130 US Department of State – Public Notice 10777 delivered on May 30, 2019. Retrieved 25 June 2019, from https://www.govinfo.gov/content/pkg/FR-2019-05-30/pdf/2019-11300.pdf. 131 Duke and George (2017). 132 https://www.justsecurity.org/wp-content/uploads/2019/06/charter-commission-unalienablerights.pdf. Accessed 25 June 2019. 123

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international human rights law under the lens of conservative religious natural-law thinking.133 In particular, liberal commentators are worried that this Commission would use rights (or, to paraphrase its Charter, rights discourse) against sexual and reproductive rights, or transgender rights, or sexual equality.134 In Frédéric Mégret’s words, ‘[p]erhaps nothing is more misleading than the Dworkinian image of rights as trumps’.135 Rather, unalienable rights could be mobilised to expand the power of the state and crush the already limited space of women and sexual minorities.

4 Concluding Remarks: Fox Hunters and International Law When, in 2006 and 2008, the fox hunter’s NGO Countryside Alliance submitted a petition before the European Court of Human Rights, a commentator dismissed this suit as the ‘last desperate throw’136 of a hopeless outsider group.137 In a way, this is understandable. After all, we were dealing with a group of landlords who were challenging the legality of the UK’s recent legislation that had banned the ancient practice of fox hunting. We must remember, after all, that fox hunting is not a trivial matter in British history, but rather a long-established class-based ritual,138 which contains in itself a long durée of enclosures, delimitations, and developments in capital accumulation.139 After losing before the House of Lords, the Countryside Alliance sought to seek redress before Strasbourg, claiming that the hunting ban did not only fail to uphold the right to private life, peaceful assembly, and the right to peaceful enjoyment of possessions, but also other several international regimes beyond the European Convention.140 While the Court, unanimously, dismissed this case, I conclude that it offers a haunting image for the future of strategic human rights litigation. We have grown so accustomed to seeing progressive and centre-left NGOs at the courtroom that imagining fox-hunting aristocrats pleading before Strasbourg seems somewhat illusory. This, however, will only increase, as the populist backlash rises in—and beyond—international law. Public interest litigation can not only be used to protect

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Posner (2019). Giacomo (2019). 135 Mégret (2012), p. 14. 136 Hale (2012), p. 72. 137 Marsh (2009). 138 Howe (1981). 139 Thompson (1975). 140 ECtHR, Countryside Alliance and Others v. United Kingdom, App nos. 1607/06, 25,809/08, 24 November 2009, para. 33. 134

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minorities but also to uphold white privilege and inequality. Georgetown141 and Harvard142 Law Schools—just to name salient examples—now offer their students comprehensive guides for careers in reactionary, conservative, and libertarian public interest litigation. Critical voices, for a long time now, have been calling for a re-politicisation of human rights, inviting its advocates to ‘descend into the world as language of contest and struggle’.143 Sadly, cosmopolitans insist ‘keeping calm and carry on’ lawyering as usual,144 with their ‘radically moderate approach’.145 While Rome burns, the cosmopolitans have not started to question the perils of judges as instruments of illiberal global governance. The right, however, has rediscovered its own history, and is willing to embrace (and politicise) human rights, constitutionalism, and judicialisation in their own image. And now, to remember Bob Dylan, the times they are a-changin’, we don’t need a weatherman to know which way the wind is blowing.

References Allott, P. (2009). The health of nations. Cambridge: CUP. Alston, P. (2017). The populist challenge to human rights. Journal of Human Rights Practice, 9(1), 1–15. Alter, K. J. (2014). The new terrain of international law. Princeton: Princeton University Press. Andenæs, M. T., & Bjørge, E. (2015). A farewell to fragmentation: Reassertion and convergence in international law. Cambridge: CUP. Avbelj, M. (2016). High Time for Popular Constitutionalism! Verfassungsblog. Retrieved 30 April 2020, from https://verfassungsblog.de/high-time-for-popular-constitutionalism/ Bass, G. J. (2000). Stay the hand of vengeance: The politics of war crime tribunals. Princeton: Princeton University Press. Benvenisti, E. (2008). Reclaiming democracy: The strategic uses of foreign and international law by National Courts. American Journal of International Law, 102(2), 241–274. Bernal, C. (2018). Introduction to I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part II: The Paradox of the Transformative Role of the Colombian Constitutional Court. I-CONnect. Retrieved 30 April 2020, from http://www.iconnectblog.com/2018/11/intro duction-to-i-connect-symposium-contemporary-discussions-in-constitutional-law-part-i-the-par adox-of-the-transformative-role-of-the-colombian-constitutional-court

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Georgetown Law’s Conservative Public Interest Law Guide. Retrieved 15 June 2019, from https://www.law.georgetown.edu/your-life-career/career-exploration-professional-develop ment/for-jd-students/explore-legal-careers/practice-areas/conservative-public-interest-law/. 142 Greiman VA, OPIA’s Guide to Conservative/Libertarian Public Interest Law: Exploring Opportunities with Nonprofits, Research Institutes, and Government Agencies (Harvard Law School, 2007). Retrieved 15 June 2019, from https://hls.harvard.edu/content/uploads/2008/07/guide-conser vative.pdf. 143 Moyn (2014), p. 63; Brown (2004), p. 103; Lacroix and Pranchère (2018), p. 245. 144 Schwöbel-Patel (2019). 145 Hannum (2019).

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Daniel Quiroga-Villamarín is a graduate student at the Graduate Institute of International and Development Studies (IHEID), Geneva, Switzerland.

From Judicialisation to Politicisation? A Response to Daniel Quiroga-Villamarín by an Academic Turned Practitioner Andreas Paulus

Abstract This comment is a reply to Daniel Ricardo Quiroga-Villamarín’s chapter ‘From Speaking Truth to Power to Speaking Power’s Truth: Transnational Judicial Activism in an Increasingly Illiberal World’. In his reply, the author agrees that we are indeed living in a period of backlash against liberal cosmopolitanism, but questions some parts of Daniel’s methodology and argumentation. As judges are constrained by positive law, their potential for innovation and activism is limited. They must balance community interests with rights of states and individuals and are not a vehicle of revolution but at best evolution. The comment concludes with a call for dispute resolution by courts as a means for upholding pluralism.

1 Introduction: Cosmopolitan Activism and Judicial Cynicism Thank you very much for inviting me to a fantastic conference with a fitting title for our times: Cynical International Law. Berlin is also the right place for this conference: It was, lest we forget, here in Berlin where Frederick ‘the Great’ of Prussia damned preventive war in his Anti-Machiavel in 1736 before invading Silesia upon his enthronement in 1740,1 and it was here in Berlin that Reichskanzler von Bethmann-Hollweg justified the invasion of neutral Belgium without a declaration of war with the unforgivable words ‘Not kennt kein Gebot’ (‘necessity knows no law’)2—promising compensation only for after the war.

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For further references see Paulus (2007), pp. 695, 710. Verhandlungen des Deutschen Reichstags (1914) XIII. LP, II. Sess., (306), p. 6. Author’s translation.

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A. Paulus (*) Georg-August-Universität Göttingen, Göttingen, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_8

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Daniel Quiroga-Villamarín has presented us with an intriguing narrative of cynicism in our own ranks, although the term itself does not appear in his chapter. In an attempt to further self-proclaimed ‘progressive’ causes, he claims, international lawyers of the 1990s, whom he labels cosmopolitans, including yours truly, have cynically argued for a ‘judicialisation’ of international politics to further their political goals. In an ironic twist of history, however, they had to recognise that the same mechanisms can be used for the opposite, i.e. reactionary ends, such as prohibiting the penalisation of genocide denial or criminalising abortion. Strangely enough—I do not say: cynically enough—the chapter’s counter-recipe is not less, but more activism. Sadly, Daniel writes cosmopolitans insist ‘keeping calm and carry on’ lawyering as usual, with their ‘radically moderate approach’. While Rome burns, the cosmopolitans have not started to question the perils of judges as instruments of illiberal global governance.

I must confess that as both an addressee and object of the chapter, I am somewhat confused. As a cosmopolitan, I was and am not activist enough; as a judge, I have become an instrument of ‘illiberal global governance’. Let me proceed in, basically, the sequence of the chapter, starting with its claims on cosmopolitan optimism of the 1990s, followed by looking at the four cases Daniel uses to illustrate his argument on the illiberal turn of judicialisation. I will end coming back to my theme at the beginning: While I question—as my role requires—some of Daniel’s methodology and argument, we are indeed living in a period of backlash against liberal cosmopolitanism, and have to ask whether we should follow Daniel’s advice on what to do about it.

2 Cosmopolitans and Judicialisation in the 1990s Indeed, in the 1990s, there was a reason for optimism from a standpoint favouring the rule of law in international affairs: the end of the Cold War had led to considerable international consensus on matters ranging from democracy and human rights to questions of law and peace. On the liberation of Kuwait from the Iraq invasion, the late George Herbert Walker Bush spoke of a ‘New World Order’3 brought about by superpower consensus in the UN Security Council, and the ‘Washington consensus’ seemed to have spread from trade to politics in a way that Francis Fukuyama could speak of the ‘end of history’—with the notable exceptions, as it were, of ‘some isolated true believers . . . in places like Managua, Pyongyang, or Cambridge, Massachusetts’.4 And yet, not to forget, the Iraq war, the Yugoslav succession wars, and the Srebrenica and Rwanda genocides also took place in the 1990s. I, for one, did not

3 4

For further reference and contextualisation see only Arend (1993), p. 491. Fukuyama (2018).

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perceive this time as one of an uninterrupted triumph of liberal cosmopolitanism. Instead, reflecting on the fateful day of the beginning of the NATO bombing of Kosovo and the pronouncement of the final Pinochet judgment of the then Appellate Committee of the House of Lords,5 I wrote about triumph and tragedy of the rather new branch of international criminal law, always too late to actually prevent atrocities from happening.6 If we speak of the historical responsibility of the generation of international lawyers coming of age in the 1990s, we should speak of our inaction regarding the real genocides happening in Srebrenica and Rwanda, and our ignoring the risks of violating the prohibition on the use of force in the Kosovo intervention, rather than of exerting too much liberal optimism. Nevertheless, what role do the judicial cosmopolitans play here? Did they really believe in courts as paving the road to liberal paradise? Here, I think, the chapter may be somewhat simplistic. When, for example, Bruno Simma, in his Hague Course on Bilateralism and Community Interest in International Law, argued in favour of using public, even constitutional rather than private law analogies, he warned that one must not forget that traditionally patterned, bilateralist international law still constitutes the basis on which the new developments are taking shape – and a rather pertinacious basis at that.7

Community interests, he argued, could only be protected on a ‘bilateralist grounding’.8 In his article on the Kosovo war, Simma did not deny the perils of the concomitant violation of the prohibition on the use of force and later exclaimed in another piece on the disregard for the UN Charter: ‘[this] is not a . . . way to treat a constitution’.9 Thus, when this internationalist (out of quite a few) referred to community interests—global warming was not yet widely known at the time, unlike other challenges to the international community such as environmental degradation, or the persistent human rights violations everywhere—he seemed to simply point out that these interests could not be effectively protected by a purely transactional view of treaty law. While one may, of course, find more enthusiastic pronouncements—particularly regarding the internationalist flavour of the decade, the Rome Statute of the International Criminal Court10–, it is unclear to me what role Daniel assigns to judges. Or rather, the role he believes liberal activists assigned to them. My 2010 article on International Adjudication that Daniel criticises for its activism rather begins with the statement that

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House of Lords, Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, Judgment of 24 March 1999, [1999] UKHL 17. 6 Paulus (1999). 7 Simma (1994), p. 230. 8 Simma (1994), p. 248. 9 Simma (1998), p. 65. 10 See e.g. Ambos (2013), pp. 57–59.

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[f]ormal adjudication is only one – and usually the last – method of dispute settlement resorted to by states. . . . International courts and tribunals have to undertake an ever-more difficult balancing act between different legal and moral value systems.11

The section of the article that Daniel cites starts, in turn, with the assertion that radical liberalism lacks the cross-cultural acceptance which would be necessary for reaching universality. Without universality, however, international adjudication remains unable to deal with disputes between actors of different philosophical and ethical traditions.12

This is a criticism, not an endorsement of the idea of an international law for liberal states only. Finally, the article is far from espousing a view of the law that would allow sidestepping the mutually agreed law for the ideological goals of the judge. Just the opposite, legal answers are supposed to refer to standards, rules, and principles established by some kind of generally recognized formal procedure. A failure by judges to use these standards would result in arbitrariness and thereby in a dereliction of duty.13

This may be Herculean enough, and I use Dworkin’s example to show that international law cannot achieve what Dworkin required.14 In the following quote used by Daniel, the emphasis is on the agreed standards, and not on a free-wheeling finding of a cross-cultural common ground. Accordingly, the courts cannot quite play the role allegedly pursued by liberal cosmopolitans—they cannot and will not go beyond the principles accepted previously by the society they serve—be it the state or the international community. Legal activism must thus work on substance, not only on the process. Here I entirely agree with Daniel. More importantly for our purposes, while the story Daniel provides may in some regards be simplistic—which is a necessary feature of broad mapping exercises like the one he undertakes—but broadly speaking still correct: the 1990s and 2000s were the decades of great international judicial projects coming to fruition, beginning with the International Tribunal of the Law of the Sea, the International Criminal Court, but also the Dispute Settlement System of the World Trade Organization and a European Court of Human Rights directly accessible to individuals. Some of these projects today are suffering or even disintegrating for lack of support by states—not for the dereliction of duty by judges or arbitrators. The backlash against international adjudication is certainly for real, and the emphasis on state consent often only hides the contempt for solutions, including the views of the other advocated by liberal thinkers such as Jürgen Habermas15 or the late Thomas Franck16 as well as postmodernists such as Martti Koskenniemi.17

11

Paulus (2010), p. 207. Id., p. 219. 13 Id., p. 224. 14 Id., p. 221. 15 Habermas (1996). 16 Franck (1995), pp. 7–9. 17 Koskenniemi (2009), pp. 83, 87. Cf. Müller and Paulus (2009), pp. 85, 89. 12

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But as judges are constrained by the existing positive law, their potential for innovation and, even more so, activism is limited. They must balance community interests with individual rights of states and individuals. They are not a vehicle of revolution but at best evolution. Such as the law of the community they serve, at times they hold power to the law—but they also translate general laws into concrete commands limiting individual rights. However, what courts can and should achieve is the control of the exercise of any use of power, be it domestic or international, against the rules accepted by the community in which they operate. This is the core of constitutionalism, and while I always was a sceptic as to the factual description of international law as a constitutional system, to introduce such constitutional thinking in international law including in the UN remains, in my view, a worthwhile endeavour.18

3 The Examples of Backlash This leaves the question of the examples the article gives. I must confess I have difficulty to see them helping its argument much. To begin with, I do not think that constitutionalists in the 1990s expected courts to only listen to so-called progressives. It is the very point of a fair judicial proceeding to hear all pertinent voices, including those by some perceived as reactionary. The article’s first example consists of a holding by the European Court of Human Rights with a narrow majority that the prohibition on the denial of the Armenian genocide in the Swiss Penal Code is contrary to the Convention because it is not necessary in a democratic society.19 One may, of course, disagree with the judgment—it was very controversial within the Court, as the dissents suggest.20 But no one can seriously question the depth and length of the argument. In Germany, for example, mere factual statements are not even protected by the freedom of speech.21 And, of course, it is not entirely clear whether the use of criminal law to quell potentially erroneous legal-historical qualifications of historical facts as genocide is necessarily a progressive or conservative position. This leads us to one of the problems of the argument of progress in general—your reactionary is my progressive and vice versa. That is why these matters need to be discussed on their merits, not by labels. The second case on abortion is mainly of a constitutional, not of an international nature to begin with. There is neither a treaty nor a customary law requiring the freedom of abortion, even less so in an unlimited fashion—but this does not of

18

Paulus (2009), pp. 106–109. ECtHR, Perínçek v. Switzerland (GC), App no 27510/08, 15 October 2015. 20 Id., paras. 116–127. 21 German Federal Constitutional Court, BVerfGE 90, 241 (247); 94, 1 (8) on the complex relationship between facts and opinions in this regard; for the contrary view on Article 10 ECHR, see ECtHR, Springer v. Germany (No. 2), App No 48311/10, 10 July 2014, §§ 63–64. 19

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course imply that criminalising abortion does not touch upon a woman’s right to health.22 It is also frankly not quite clear to me whether it has anything to do with global progressivism. Not least for religious, but also for ethical reasons, abortion is extremely controversial in many countries of the world because it regards questions of family, personhood, and the individual rights of the unborn. That some of my brethren will have controversial views on this matter is anything but a surprise, nor would it have been to 1990s constitutionalists. The same applies to the groups considered by Daniel as archconservative—who existed already in the 1990s— who he uses in his third example and who were also a powerful voice in the UN conferences of the 1990s and beyond on matters pertaining to family, abortion, and reproductive rights.23

4 Conclusion: Judicial Power and Democracy Finally, as I have pointed out, we would be blind if we ignored that, in the real world, the international acceptance of allegedly elite procedures such as courts and tribunals is dwindling. Why should courts be allowed to order sovereign states to accept outcomes they wanted to accept neither in the past nor in the present? Of course, the term elite becomes pejorative in this usage. But what we see here, which the chapter identifies entirely correctly, is the claim by one elite to do away with another.24 This leads me finally to the chapter’s conclusion. The challenge of populism is that the panoply of voices is negated, and democracy regarded as a direct translation of popular will by a leader into reality without taking intervening moderating voices into account. Pursue also politics, not only law, Daniel claims. If the goal is to advance political ends that have no sufficient basis in existing law, this argument is certainly correct. My learned colleague and friend Brun-Otto Bryde made a similar point in his farewell speech to the German Federal Constitutional Court.25 But if it is true that the challenge of the current populism is the very denial of pluralism,26 then the call for dispute resolution by courts appears more important than ever. But this call to courts can only be sustained under certain conditions: it presupposes that they use a fair procedure in which every pertinent voice is heard

22

Cf. Gebhard and Trimino (2013), para. 24 with further references. But see CEDAW Committee, General Comment No. 24, para. 31 (c) recommending that, ‘[w]hen possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion’. 23 Professor Mary Ann Glendon of Harvard Law School may be the best example. A former US Ambassador to the Holy See, she is now chairing US Secretary Pompeo’s Commission on Unalienable Rights, see https://www.state.gov/commission-on-unalienable-rights. Accessed 12 May 2020. 24 See also Koskenniemi (2019). 25 Bryde (2011). 26 See generally Müller (2017), Mudde (2017).

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and that they attempt to find a fair balance between the rights concerned, based on rules and principles democratically accepted by the people, directly or via their representatives, rather than by the fiat of a ruler. This promise is quite independent of whether it leads to results that activists may regard as reactionary or progressive.

References Ambos, K. (2013). Treatise on international criminal law. Volume 1: Foundations and general part. Oxford: OUP. Arend, A. C. (1993). The United Nations and the new world order. Georgetown Law Journal, 81(3), 491–434. Bryde, B.-O. (2011). Verfassungsgerichtsbarkeit in der Demokratie. Europäische Grundrechte Zeitschrift, 38(1-4), 237–238. Franck, T. (1995). The power of legitimacy among nations. Oxford: OUP. Fukuyama, F. (2018). The end of history? In M. Cohen (Ed.), Princeton readings in political thought: Essential texts since Plato (2nd ed., pp. 645–654). Princeton: Princeton University Press. Gebhard, J., & Trimiño, M. (2013). Reproductive rights, international regulation. In R. Wolfrum (Ed.), Max Planck Encyclopedia of Public International Law (online ed.). Oxford: OUP. Habermas, J. (1996). Die Einbeziehung des Anderen: Studien zur politischen Theorie. Frankfurt am Main: Suhrkamp. Koskenniemi, M. (2009). The gentle civilizer of nations: The rise and fall of international law 18701960. Cambridge: CUP. Koskenniemi, M. (2019). International law and the far right: Reflections on law and cynicism, Annual T.M.C. Lecture Series. The Hague: T.M.C. Asser Press. Mudde, C. (2017). Populism: An ideational approach. In C. Kaltwasser et al. (Eds.), The Oxford handbook of populism (pp. 27–48). Oxford: OUP. Müller, J.-W. (2017). What is populism? Philadelphia: University of Pennsylvania Press. Müller, J., & Paulus, A. (2009). Survival through law: Is there a law against nuclear proliferation. Finnish Yearbook of International Law, 18, 83–136. Paulus, A. (1999). Triumph und Tragik des Völkerstrafrechts. Neue Juristische Wochenschrift, 52 (36), 2644–2646. Paulus, A. (2007). Zur Zukunft der Völkerrechtswissenschaft in Deutschland: Zwischen Konstitutionalisierung und Fragmentierung des Völkerrechts. Heidelberg Journal of International Law, 67, 695–719. Paulus, A. (2009). The international legal system as a constitution. In J. Dunoff et al. (Eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (pp. 69–109). Cambridge: CUP. Paulus, A. (2010). International adjudication. In S. Besson & J. Tasioulas (Eds.), The philosophy of international law (pp. 207–224). Oxford: OUP. Simma, B. (1994). From bilateralism to community interest in international law. Collected Courses of the Hague Academy of International Law, 250, 217–384. Simma, B. (1998). Comments on global governance, the United Nations, and the place of law. Finnish Yearbook of International Law, 9, 61–66.

Andreas Paulus is Professor of Public and International Law at Georg-August-Universität Göttingen, Germany. Since 2010, he has served as Justice of the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht).

Oceans of Cynicism? Norm-Genesis, Lawfare and the South China Sea Arbitration Case Christian Pogies

Abstract A prominent assumption about international law is that it contains and prevents interstate conflicts. Yet, the South China Sea Arbitration has brought the neologism ‘lawfare’ to prominence within the fields of international relations theory and international law. A combination of ‘law’ and ‘warfare’, China and the Philippines accused each other of using this concept on their respective interpretations of the UN Convention on the Law of the Sea (UNCLOS). In my opinion, lawfare and its implications for international law can only be adequately assessed in the present case if both the genesis of UNCLOS and a broader historical perspective are considered. The Convention was designed to act as the constitution of the oceans but got entangled in a complex web of customary international law, former peace treaties and the history of colonialism. Lawfare, potentially rather a symptom of increasing diversity within international legal scholarship and practice than a mere cynical use of the law, is thus embedded in the tension between the desire for international norm compliance by states, structural power relations and the resistance against them.

1 Unfolding the Problem: An Introduction In 1946, international law scholar Hersch Lauterpacht published the article ‘The Grotian Tradition in International Law’ in which he ascribes several traditions to the ‘father of modern international law’, including the ‘tradition of peace’ and that of ‘progress and idealism’.1 The political science school of thought of classical realism

1

Lauterpacht (1946).

C. Pogies (*) Max Planck Institute for European Legal History, Frankfurt, Germany Goethe-Universität Frankfurt, Frankfurt, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_9

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questions the power of these traditions.2 According to classical realism, the purpose of a ‘positive peace’ in international relations cannot be established permanently by means of international law.3 In situations that states perceive as particularly sensitive, politics would always prevail.4 Ultimately, the interests of a single state would take precedence over the collective desire of the international community to comply with international norms.5 An increasing number of research approaches within international law also critically reflect on the role of international law in the inter-state system. Third World Approaches to International Law focus, for example, on structural power relations that permeate international law.6 More recent approaches to so-called norms research—situated both in legal scholarship and in political science—offer the potential to shed a new light on the relationship between international law and conflict.7 The hypothesis of this chapter is that contrary to its intended function of containment and prevention of interstate conflicts, international law can also cause or exacerbate conflicts through the formation of new treaty law. Most political science and international law perspectives that deal with conflict potentials of international law do so implicitly. Less attention has been paid to an approach that explicitly identifies conflict potentials in the process of norm genesis in international law.8 In this context, cynicism as an analytical tool is of help to inform the conflicttheoretical approach as well as to depict the presumed use of lawfare in the South China Sea Arbitration in a more nuanced way. One of the most prominent definitions of cynicism today stems from Peter Sloterdijk and is worded as follows in the introduction to this volume: [Cynicism] now also serves the powerful as an antithesis to their own purported idealism, which is thus revealed as ‘ideology and as masquerade’. In that sense, cynicism nowadays refers not to a critique of power but to a strategy of furthering one’s interests by pragmatic or, if you will, tactical behaviour. Such behaviour refuses to publicly acknowledge the disregard for ethical idealism and the law, which it in fact practises.9

However, for cynicism to function as an instrument of analysis in the present case, the question cannot be an ontological one, as in: which actor in the dispute is the true cynic? Instead, the question should be: who might be perceived by whom as cynical in the application of international law? This lens—which asks not for the what, but

2

See Jeffery (2006). On the concept of ‘positive’ and ‘negative’ peace, see Galtung (1996). 4 See e.g. for the discussions about the so-called ‘core interests’ on the South China Sea dispute Yoshihara and Holmes (2011); Hong (2012), pp. 31–33; Zhu (2011), pp. 433–436. 5 See Koskenniemi (2001). 6 For an overview see, Chimni (2007). 7 See e.g. Wiener (2014); Schuppert (2019). 8 Recently such a research assumption can be found in Hakimi (2017a, b, 2018a, b); and Koskenniemi (2005). 9 Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume. 3

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for the how—allows cynicism to unfold its potential as an analytical tool because it forces us to switch perspectives and questions conventional narratives. It asks: why would the parties to the dispute perceive each other as engaging in ‘tactical behaviour [that] refuses to publicly acknowledge the disregard for ethical idealism and the law, which it in fact practices’?10 In a globalised world, the sea plays an increasingly important role, be it for the transport of goods, the exploitation of resources, or global ecological balance. After the first two conventions on the law of the sea were perceived as failures, phenomena such as ‘creeping state jurisdiction’, where coastal states unilaterally tried to extend their maritime jurisdictions, made uniform regulations more and more pressing.11 In 1967 Arvid Pardo, the Maltese Ambassador to the UN, initiated a new attempt to find globally accepted norms for oceans governance.12 After nine years of negotiations,13 the UN Convention on the Law of the Sea (‘UNCLOS’ or ‘the Convention’) was adopted in December 1982 and entered into force in November 1994. To date, 168 states have ratified the Convention. In its preamble, it reads: Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world . . .14

In the South China Sea conflict, UNCLOS and customary international law play an important role in disputes as the main points of reference. All states currently advancing maritime and/or territorial claims formulate them as legal claims and not as claims based on mere economic or military power. Following my remarks on cynicism, the focus in this chapter is not on who interprets the law correctly, but on how the state actors use international law in their argumentation vis-à-vis the international community. I will proceed in three steps. The first section of the chapter deals with norm-genesis in international law, specifically UNCLOS. To this end, I will start by looking at relevant arguments put forward by states under customary international law, most importantly on the modes of territorial acquisition. These modes define who has a legitimate claim to sovereignty and they connect with the historical self-image of a state. In the second section, I will look at the concept of lawfare as used in the South China Sea Arbitration from a theoretical and a practical point of view. Here, I will show, inter alia, how China created a narrative based on its colonial experience with

10

Id. For the general phenomenon, see Oxman (2006). For a concise historical overview, see Graf Vitzthum (2003). The term of ‘creeping state jurisdiction’ is taken from Molenaar (2015). 12 See UN General Assembly, First Committee, Official Record of the 1515th Meeting, UN Doc A/C.1/PV.1515 (1 November 1967); UN General Assembly, First Committee, Official Record of the 1516th Meeting, UN Doc A/C.1/PV.1516 (1 November 1967); critical on Arvid Pardo: Ranganathan (2016). 13 On the complex negotiation process, see Koh and Jayakumar (1985). 14 Preamble of the UN Convention on the Law of the Sea (UNCLOS), 1833 UNTS 3. 11

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international law to undermine the legitimacy of the arbitration proceedings. The synthesis connects these strands and points to the challenge that lawfare might present for international law as a discipline. I will conclude with some final thoughts on cynicism and lawfare.

2 Norm-Genesis: What Is Land Territory and Why Does It Matter? UNCLOS and customary international law are anchor points of the argumentative legitimation strategies of all states bordering the South China Sea as well as the USA. In the dispute, customary international law is mainly relevant for the question of historical claims to sovereignty. Under the new Convention, sovereignty and entitlement to maritime zones can only be generated by land territory. Key questions and points of contention are therefore, first, which maritime features qualify as land territory under UNCLOS? Second, if they do qualify as such, which maritime zone with which kind of jurisdiction is attached to them?

2.1

Customary International Law: Matters of Sovereignty and History

The relevance of customary international law for the disputes in the South China Sea is mainly based on the concept of terra nullius. As a legal argument, this mode of territorial acquisition refers to the assertion by a state to have discovered and subsequently occupied the claimed territory.15 A discovery can only be asserted if the territory has previously been terra nullius, i.e. no other legal entity has already exercised sovereign rights over this territory at the time of its discovery.16 If this condition is met, the discoverer must demonstrate his willingness to act as sovereign over this territory and must exercise his sovereignty rights effectively and continuously.17 It also seems certain that only government actions, such as the enforcement of international or national legal norms, can be considered as acts of sovereignty; the isolated action of private actors, such as fishing or energy companies, has so far been irrelevant under customary international law.18

15

See Jennings (1963), pp. 23 and 38. Id., p. 22. 17 Id. 18 ‘The Court observes, however, that activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority’, in ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, ICJ Rep 2002, 625, para. 144. 16

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Of all the states that claim sovereignty over maritime features in the South China Sea, China is making the most extensive use of terra nullius. According to China, it was the first country to discover the islands in the South China Sea, in the early Han Dynasty (202 BC–220 AD).19 The Chinese government also claims that China had been the first to explore the islands and exercised jurisdiction over them since the Yuan Dynasty (1271–1368).20 At the same time, patrol trips to the islands had been organised by the state.21 Chinese people began fishing on the islands in the South China Sea during the Ming Dynasty (1368–1644) and the state continued to exercise jurisdiction throughout the Qing Dynasty (1644–1911).22 For all states bordering the South China Sea, the emerging colonialism in the nineteenth century and later the Second World War represented a turning point in their ability to exercise sovereignty.23 While the maritime features in the South China Sea were initially in the possession of the colonial powers France, Great Britain and the USA, some of them were occupied by Japan in the course of the Second World War.24 In post-war period, China considers the Cairo Declaration (1943), the Potsdam Proclamation (1945) and the San Francisco Conference (1951) to be of particular significance.25 China claims that both declarations explicitly state that all Chinese territories occupied by Japan should be returned to it.26 In addition to some islands of the East China Sea, this would also include the islands in the South China Sea, occupied by Japan in 1939 and of disputed status today.27

19 Ministry of Foreign Affairs of the People’s Republic of China (2000), Historical Evidence To Support China’s Sovereignty over Nansha Islands. Retrieved 30 April 2020, from http://www. fmprc.gov.cn/mfa_eng/topics_665678/3754_666060/t19231.shtml. 20 Id. 21 Id. 22 Id. 23 See Hayton (2017), pp. 17–34; Truong and Knio (2016), especially Chapter 3. 24 Tønnesson (2006), pp. 9–20. 25 Cairo Declaration (1 December 1943). Retrieved 1 June 2020, from https://www.ndl.go.jp/ constitution/e/shiryo/01/002_46/002_46_001r.html; Potsdam Proclamation (26 July 1945). Retrieved 1 June 2020, from https://history.state.gov/historicaldocuments/frus1945Berlinv02/ d1382; Treaty of Peace with Japan (with two declarations). Signed at San Francisco (8 September 1951). Retrieved 1 June 2020, from https://treaties.un.org/doc/Publication/UNTS/Volume%20136/ volume-136-I-1832-English.pdf. 26 Ministry of Foreign Affairs of the People’s Republic of China (2000), Its Origin. Retrieved 30 April 2020, from https://www.fmprc.gov.cn/mfa_eng/topics_665678/3754_666060/t19233. shtml. 27 Id. On the San Francisco Conference, see Ministry of Foreign Affairs of the People’s Republic of China (2000), International Recognition Of China’s Sovereignty over the Nansha Islands. Retrieved 30 April 2020, from https://www.fmprc.gov.cn/mfa_eng/topics_665678/3754_666060/t19232. shtml. For more information on Chinas historical arguments, see Chi (2011); Talmon and Jia (2014), pp. 183–189.

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United Nations Convention on the Law of the Sea: Matters of Maritime Zones and the Legal Status of Maritime Features

Maritime zones can be claimed under UNCLOS in accordance with the principle of ‘the land dominates the sea’ from the mainland, islands and rocks.28 These maritime zones include the ‘territorial sea’, the ‘exclusive economic zone’ and the ‘continental shelf regime’. Coastal states can establish a territorial sea up to 12 nautical miles into the sea, measured from the baselines (Article 3 UNCLOS). In their territorial sea, they enjoy virtually total sovereign rights and jurisdiction, almost analogous to land territory (Part II UNCLOS). The exclusive economic zone, on the other hand, allows coastal states to exercise only limited sovereign rights and jurisdiction, but grants the exploitation of all submarine resources up to 200 nautical miles into the sea from the baseline (Part V UNCLOS). Equally relevant is the continental shelf regime, which permits states under certain circumstances to extend their exclusive economic zone beyond the generally applicable 200 nautical miles up to 350 nautical miles (Part VI UNCLOS). By uniformly codifying maritime zones, UNCLOS significantly increased the value of the objects legally considered islands, as they are entitled to all three maritime zones.29 Rocks, on the other hand, only generate a territorial sea and low-tide elevations no zone at all (Article 121 (3), 13 UNCLOS). In the South China Sea, claims to maritime zones often overlap due to the numerous and small maritime features and the unresolved sovereignty issues under customary international law.30 This became evident when Malaysia and Vietnam made their joint submission to the ‘Commission on the Limits of the Continental Shelf’ on 6 May 2009, as well as in Vietnam’s individual submission the following day.31 In the latter, Vietnam reiterated, among other matters, its claim to sovereignty over both the Paracel Islands and the Spratly Islands ‘as well as more than 3000 islands and islets covering a large part of the East Sea’.32 In response to the two separate submissions, China sent two identical protest notes, in which it stated:

28 See Tanaka (2006), pp. 110 and 138–141; UN Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs (2000), p. 19. 29 See Song and Tønnesson (2013). See on the value of islands (Art. 121 UNCLOS), especially in conjunction with Part V UNCLOS and Part VI UNCLOS. For state actors, these enhancements are largely of a strategic and economic nature, but also culturally the sea seems to have gained in importance. In general, see Steinberg (2001). 30 For a concise description of the South China Sea's geography and its strategic value, see Zou (2015). For an overview of the overlapping claims, see Amer (2002). 31 Socialist Republic of Viet Nam (2009), Partial Submission in respect to Vietnam’s extended continental shelf: North area. Part I: Executive Summary. Commission on the Limits of the Continental Shelf. Retrieved 30 April 2020, from https://www.un.org/Depts/los/clcs_new/submis sions_files/vnm37_09/vnm2009n_executivesummary.pdf. 32 Id. The term ‘East Sea’ is synonymous to ‘South China Sea’ and used by the government of Vietnam.

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China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).33

The map referred to by China shows nine U-shaped lines enclosing most of the South China Sea (the ‘nine-dash line’) and caused considerable controversy. According to Robert Beckman, the statement and attached map ‘could mean that China was claiming sovereign rights and jurisdiction over all the maritime space within the nine-dash line’.34 China points to ‘historic rights’ as a basis of its claim, but does not specify whether this refers to any specific legal text.35 The Philippines responded with a diplomatic note to China stating that the Kalayaan Island Group was an integral part of the territory of the Philippines and that it therefore had sovereignty and jurisdiction over this archipelago located in the Spratlys.36 The claims set out by China in the two diplomatic notes would therefore have no legal basis under international law, particularly under UNCLOS.37 The principle of ‘the land dominates the sea’ also matters for a second reason. Since all parties to the dispute have occupied many islands and rocks in the South China Sea, their legal status under UNCLOS also became contested in some cases. The key question is whether sovereignty rights over the occupied maritime features can be asserted under UNCLOS at all and, if so, which ones. The Philippines, for example, argue: China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are ‘rocks’ under Article 121 (3) of UNCLOS.38

33 The quotation and map are to be found in: Permanent Mission of the People’s Republic of China to the UN (2009), Note Verbale to the Secretary-General of the UN (CML/17/2009). Retrieved 30 April 2020, from http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_ 2009re_mys_vnm_e.pdf.; Permanent Mission of the People’s Republic of China to the UN (2009), Note Verbale to the Secretary-General of the UN (CML/18/2009). Retrieved 30 April 2020, from http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf. 34 Beckman (2013), p. 155. 35 For the ‘historic rights’, see Gao and Jia (2013); Nong (15 May 2012). More recently, see Guilfoyle (2019). 36 Permanent Mission of the Republic of the Philippines to the UN (5 April 2011), Note Verbale to the Secretary-General of the UN (No.000228). Retrieved 30 April 2020, from http://www.un.org/ Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf. 37 Id. 38 Rosario, A., (2013), Statement: The Secretary of Foreign Affairs on the UNCLOS Arbitral Proceedings against China. Official Gazette. Retrieved 30 April 2020, from https://www. officialgazette.gov.ph/2013/01/22/statement-the-secretary-of-foreign-affairs-on-the-unclos-arbi tral-proceedings-against-china-january-22-2013/.

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Finally, the USA plays an important role in third and last line of conflict. In contrast to the regional parties to the conflict, the USA did not ratify UNCLOS, but recognises large parts of the Convention as customary international law.39 Although the USA, unlike all bordering states, does not advance any territorial claims in this maritime area, it is concerned with enforcing its interpretation of freedom of navigation and overflight. In 2012, the Congressional Research Service submitted a request to the US Navy. The aim was to determine how many states, in the opinion of the USA, were violating the provisions of UNCLOS by regulating foreign military activities in their exclusive economic zones as opposed to only regulating economic activities. The results for the period under review were that 27 states, including China, Malaysia and Vietnam, were violating UNCLOS.40 Robert Scherer, former US Deputy Assistant Secretary of Defense for South and Southeast Asia, expressed his concern in 2009 that nearly 40% of the ocean’s surface are currently located in an exclusive economic zone and that international freedom of shipping and aviation might be restricted in the future.41 If this were the case, according to James Kraska, the US military would acutely be prevented from defending its global interests.42 In February 2014, the Assistant Secretary of the Bureau of East Asian and Pacific Affairs Daniel Russel stated: [W]e have a national interest in the maintenance of peace and stability; respect for international law; unimpeded lawful commerce; and freedom of navigation and overflight in the East China and South China Seas. . . . In support of these principles and in keeping with the longstanding U.S. Freedom of Navigation Program, the United States continues to oppose claims that impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations.43

The US ‘Freedom of Navigation Operations’ (FONOPS) referred to by Russel include the transit of warships and military overflights in areas where the United States considers the claims by other states to be unlawful. According to James Kraska: U.S. FONOPS are an important component for building the rule of law in the oceans because they shape interpretations of UNCLOS and the law of the sea, and guide the development of associated norms and legal regimes.44

39

See O’Rourke, R., (2020), Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China. Issues for Congress. Congressional Research Service. https://fas.org/sgp/crs/row/ R42784.pdf. Accessed 30 April 2020. pp. 47–48. 40 Id., p. 38. 41 Scher (2009). 42 See Kraska (2007, 2012); De Tolve (2012). See also Kaplan (2017), Chapter ‘Cathay’. 43 Russel, D., (2014), Testimony before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific. US Department of State. Retrieved 30 April 2020, from https://2009-2017. state.gov/p/eap/rls/rm/2014/02/221293.htm. 44 Kraska, J., (2016), The Struggle for Law in the South China Sea. Statement before the Seapower and Projection Forces Subcommittee Hearing on Seapower and Projection Forces in the South China Sea. US House of Representatives Document Repository. Retrieved 30 April 2020, from https://docs.house.gov/meetings/AS/AS28/20160921/105309/HHRG-114-AS28-WstateKraskaSJDJ-20160921.pdf, p. 4.

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In 2018, the program comprised a list of 26 states, which are all states of the South China Sea, except for Brunei.45

3 The Ambiguous Role of International Law in the South China Sea Dispute In recent years, the term ‘lawfare’ has gained not only recognition in media and academia, but also broadened its conceptual scope.46 Since it is not a homogeneous concept, I will concentrate on its use by state actors in the context of international relations. Its most prominent definition stems from Charles Dunlap who conceptualised it as ‘the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective’.47 According to Dunlap, law is like a weapon that ‘can be used for good or bad purposes, depending upon the mindset of those who wield it’.48 Although Dunlap wanted lawfare to be understood as an ‘ideologically neutral description’, this hints at a discursive prevalence of lawfare with a negative connotation.49 And as it focuses on the perspective of a person detecting the use of lawfare, a crucial aspect is addressed. While some observers of the South China Sea Arbitration accused China of using lawfare, others accused the Philippines of using it. Against this background, the concept of cynicism seems helpful. It forces us to try to adopt and reconstruct the perspective of the other side to see where these ailments come from.

3.1

Lessons from History: Legal Warfare as Part of Chinas Three Warfares Doctrine

Chinas current approach to international law is closely linked to the so-called ‘century of humiliation’ and its experience with ‘unequal treaties’.50 The ‘century of humiliation’ refers to the period of China’s colonial domination by Western powers, Russia and Japan from ca. 1840–1949 initiated by its defeat in the First

45

Department of Defense (2018), Annual Freedom of Navigation Report. Fiscal Year 2018. Report to Congress. Retrieved 30 April 2020, from https://policy.defense.gov/OUSDP-Offices/FON/. 46 On different conceptualisations of the term ‘lawfare’, see Kittrie (2016). A shorter summary is to be found in Martins (24 November 2010). In 2010, the Case Western Reserve Journal of International Law published a special issue on ‘lawfare’, presenting many different perspectives on the subject. 47 Dunlap (2008), p. 146. 48 Dunlap (2010), p. 122. 49 Id., p. 121. 50 See Wang (1990); Chen (1984); more recently Zuo (2018).

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Opium War (1839–1842). The denomination ‘unequal treaties’ was developed by China to describe a series of unfavourable treaties with foreign powers signed in this period that are viewed as having been imposed on China following military losses. The quote by a nineteenth century French diplomat ‘Who is the man who is going to give the Chinese an insight into our European international law? Kill him – choke him off; he will make us endless trouble!’ appears in numerous texts about China and its experiences with international law in the past.51 In 1996, China’s then-President Jiang Zemin urged an audience of lawyers in Beijing in the following words: ‘We must be adept at using international law as “a weapon” to defend the interests of our state and maintain national pride.’52 In 1999, two Chinese colonels in the People’s Liberation Army published a book entitled ‘Unrestricted Warfare’.53 In an interview, one of them stated: War has rules, but those rules are set by the West . . . if you use those rules, then weak countries have no chance . . . We are a weak country, so do we need to fight according to your rules?54

Scholars define different types of hybrid warfare, among them ‘psychological warfare’, ‘media warfare’ and ‘international law warfare’.55 International law as a tool of warfare is described as an instrument for achieving military goals by ‘seizing the earliest opportunity to set up regulations’.56 In 2003, the Chinese Communist Party Central Committee and the Chinese Central Military Commission approved the concept of the so-called ‘three warfares’.57 According to Han Yanrong, the Chinese conception of legal warfare is at its core about arguing that one’s own side is obeying the law, criticizing the other side for violating the law (weifa), and making arguments for one’s own side in cases where there are also violations of the law.58

The USA classifies ‘legal warfare’ as lawfare. According to the US Department of Defense, the Chinese warfare doctrine describes ‘legal warfare’ as the use of ‘international and domestic law to claim the legal high ground or assert Chinese interests’.59 A report prepared for the US Department of Defense’s Office of Net

51

See e.g. Chen (1984); Wang (1990), pp. 235–236; Chan (2014), p. 868. Cited after Wang (2005), p. 128. 53 The book was translated by the ‘Foreign Broadcast Information Service’ and is listed as Qiao and Wang (2007). 54 See Pomfret (1999). 55 Werner (2010), p. 64. 56 Id. 57 Halper (2013). 58 Cheng (2012). 59 US Department of Defense (2011), Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China. Retrieved 30 April 2020, from https://dod.defense. gov/Portals/1/Documents/pubs/2011_CMPR_Final.pdf, p. 26. 52

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Assessment in 2013 states that legal warfare ‘exploits the legal system’ and intends to ‘conjur[e] law to inform claims to territory and resources, to employ . . . bogus maps to “justify” claims’.60 The report continues: Lawfare is a technology designed to justify China’s actions as legally valid and cement psychological efforts to create doubts among adversary, neutral military and civilian authorities and in the broader international community about the justification of an opponent’s actions.61

Additionally, legal warfare is considered as a ‘ready supplier of material for media warfare’, ‘preserving friendly morale; generating public support at home and abroad and altering an enemy’s situational assessment’.62 Thereby media warfare ‘leverages all instruments that inform and influence public opinion including films, television programs, books, the internet, and the global media network’.63 The last pillar of the ‘three warfares’ as presented in the US report is the so-called psychological warfare whose purpose is ‘to disrupt an opponent’s decision-making capacity’ and creating ‘doubts’, for example, ‘through diplomatic pressure’.64

3.2

The South China Sea Arbitration: Legal Warfare as Lawfare?

In January 2013, the Philippine government instituted arbitral proceedings under UNCLOS against China at the Permanent Court of Arbitration (PCA) at The Hague. By the end of October 2015, the arbitral tribunal declared that it had jurisdiction on the matter and issued its final and binding award on 12 July 2016. Many observers saw the Philippines as the winner, while considering China—which had refrained from participating in the proceedings—to be faced with an almost worst-case scenario.65 The denial by the Permanent Court of Arbitration of the historical rights claimed in the nine-dash line arguably represents the most severe setback for China—while at the same time being of great advantage for many other countries.66 By ruling such claims to maritime space as being inconsistent with UNCLOS, China is neither able to legally claim natural resources in large parts of the disputed areas nor can it make any lawful attempts to restrict the interpretation of freedom of navigation in a large 60

Halper (2013), supra note 57, p. 13. Id., p. 29. 62 Id., pp. 29–30. 63 Id., pp. 12–13. 64 Id., p. 12. 65 See Ku (2016); Zhao (2017), p. 8. 66 Beckman (2016). For a perspective of the US Navy, see Kraska (2016), supra note 44; PCA, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), PCA Case No. 2013–19, Award, 12 July 2016, para. 278 (hereafter Award). 61

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part of the South China Sea. Moreover, with the Permanent Court of Arbitration’s decision to define the largest maritime feature in the South China Sea, Itu Aba, as a rock pursuant to UNCLOS, none of the features currently occupied by China can legally generate an exclusive economic zone or a continental shelf.67 Finally, the tribunal defined three out of the seven features currently occupied by China in the Spratly Islands as low-tide elevations,68 one of them as being situated within the Philippines’ exclusive economic zone and continental shelf.69 After the Permanent Court of Arbitration issued its award, China reaffirmed its position of ‘No Acceptance, No Participation, No Recognition, and No Implementation’.70 As early as December 2014, China had published a position paper arguing against the legality of the arbitration. In this paper, in addition to stating that China ‘has indisputable sovereignty over the South China Sea Islands’ stemming from ‘historic rights’, arguments were made against the Permanent Court of Arbitration’s jurisdiction over the case.71 China considered the essence of the arbitration as being one over sovereignty and maritime delimitation, to which it had filed a reservation under UNCLOS in 2006.72 Accordingly, assuming jurisdiction by the Permanent Court of Arbitration would go beyond the scope of the Convention, as the dispute did not concern matters of the interpretation of application of UNCLOS.73 According to the Chinese Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs Xu Hong, the position paper ‘debunks the Philippines’ groundless assertions and projects China’s image as a defender and promoter of the international rule of law’.74 These official statements of the Chinese government, which are published on government websites, are elements of a broader communication approach. A prominent example of the Chinese government engaging with a foreign audience was a three-minute clip shown in New York’s Times Square between 23 July 2016 and 3 August 2016.75 According to China Daily, the video was aimed to provide ‘ample

67

PCA, Award, supra note 66, para. 625. Id., para. 626. 69 Id., para. 647. 70 The so-called ‘4-Nos’ were Chinas position at least since April 2016, see Xiao, J., (2016), China does not accept or recognize the South China Sea Arbitration by the Philippines. Consulate General of The People’s Republic of China in Zurich and the Principality of Liechtenstein. Retrieved 30 April 2020, from http://zurich.china-consulate.org/det/szyw/t1356937.htm. 71 Ministry of Foreign Affairs of the People’s Republic of China (2014), Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines. Retrieved 30 April 2020, from https://www. fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1368895.htm. 72 Id. For the declaration, see UN Treaty Collection (15 February 2020), United Nations Convention on the Law of the Sea. Retrieved 30 April 2020, from https://treaties.un.org/doc/Publication/ MTDSG/Volume%20II/Chapter%20XXI/XXI-6.en.pdf. 73 Ministry of Foreign Affairs of the People’s Republic of China (2014), supra note 71. 74 Xu (2014). 75 Kong (2016). 68

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evidence of China’s territorial sovereignty and maritime rights of the sea and its islands and was played 120 times a day’.76 In addition, Chinese English-language news-platforms played an important role in communicating China’s views on the arbitration to a global audience. For example, China Daily wrote on 13 July 2016 with reference to a statistic of the Foreign Ministry: ‘[M]ore than 70 countries have expressed support for China’s stance that negotiation, and not arbitration, is the only way to resolve South China Sea disputes.’77 Apart from reproducing official statistics and government statements, the news outlets also published articles on the subject of which most contained a critical engagement with colonial history and the arbitration proceedings. Others specifically criticised the composition of the arbitral tribunal as being dominated by Europeans appointed by a Japanese who was also deemed ‘biased’.78 This was seen by some observers as attempts to destabilise the integrity of the tribunal.79 While most articles were written by Chinese authors, they also referred to foreign experts who criticised the arbitration or the role of Japan and the USA in the dispute.80 A prominent example are the statements by the German-British international lawyer Stefan Talmon, which were circulated by various news platforms.81 Talmon also wrote several opinion pieces for the Chinese newspapers ‘Global Times’ and ‘China Daily’ in which he critically assesses the arbitration and the jurisdiction of the tribunal.82 In May 2018, an open access special issue of the ‘Chinese Journal of International Law’ was published under the title ‘The South China Sea Arbitration Awards: A

76

Anon. (2019). Fu and An (2016). Critical engagements with the numbers provided by the newspaper can be found in Wang and Chen (27 June 2016). 78 ‘[F]our of the five arbitrators are European. They do not represent global, diverse perspectives, nor do they offer the outlook of different legal systems. Four of them were appointed by Shunji Yanai, a biased Japanese former president of the International Tribunal for the Law of the Sea.’ The quotation is taken from Zhongsheng (2016)—the name is probably a pseudonym, see Swaine (2016), p. 2. 79 For the latter perspective, see e.g. Ku (9 February 2019). 80 A non-exhaustive list of titles from the China Daily includes: ‘Czech expert warns US and the Philippines not to play fire in South China Sea’ (2016); ‘British experts urge arbitral tribunal to review position to avoid being joke in legal history’ (2016); ‘US pulled the strings behind the Philippines, observers say’ (2016); ‘Cambodian scholars back China’s position on South China Sea’ (2014). 81 Quotes of Stefan Talmon can be found for example in China Daily, Global Times, Xinhua, CCTV News. 82 The opinions written by Stefan Talmon for the ‘Global Times’ are: ‘Denouncing UNCLOS Remains Option for China after Tribunal Ruling’ (2016); ‘Tribunal Ruling Not Clear Victory for Philippines’ (2015); ‘No case to answer for Beijing before arbitral tribunal in South China Sea’ (2013). For the opinion in the China Daily, see ‘Final award in Sea Arbitration Will be Flawed’ (2016). 77

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Critical Study’.83 Therein the ‘Chinese Society of International Law’ collected more than 500 pages of arguments on why the Arbitral Tribunal manifestly has no jurisdiction, and the Awards involving issues of the jurisdiction of the Tribunal, historic rights, the status of continental States’ outlying archipelagos, the legality of China’s relevant activities in the South China sea, are groundless both in fact and law.84

Especially the chapter titled ‘The composition of the Tribunal lacks representativeness’ refers again to the history of colonialism and an international law that Western states were still trying to dominate.85 The criticism communicated by China’s government is not directed at the UN Convention on the Law of the Sea as such, but solely at the Permanent Court of Arbitration, which was accused of having misinterpreted the Convention.86

4 Synthesis: How China’s Lawfare Blurred the Lines between the United Nations Convention on the Law of the Seas and the Colonial Past While some may have hoped in 1982 that the looming conflict in the South China Sea would be resolved through the genesis of the Convention, this hope was arguably dampened.87 Certainly, the territorial disputes in the South China Sea are older than the Convention and it would be wrong to attribute their existence to its creation.88 However, UNCLOS as a new legal source offers an argumentative base for states’ manifold assertions. According to Yann-Huei Song and Stein Tønnesson, the occupation and militarisation of the Spratly Islands by the Philippines, Vietnam, and Malaysia shortly after 1969 was meant ‘to ensure control of these features was tied to hydrocarbons and the new maritime zones under discussion at UNCLOS III’.89

83 Chinese Society of International Law (2018a); the same editors, but earlier, Chinese Society of International Law (2016). 84 Chinese Society of International Law (2018b). 85 See Chinese Society of International Law (2018a), paras. 902–911. 86 Recently an article on China's approach to UNCLOS was published by the Ambassador of China to Sudan and former Deputy Director-General of the Department of Treaty and Law from the Ministry of Foreign Affairs of China, see Ma (2019). 87 See e.g. Koh (1983), pp. 7–8. 88 The only available series of quantitative studies on UNCLOS and its influence on the states’ conflict behaviour comes to a rather positive conclusion. See especially Nemeth et al. (2014). However, their research is limited to the ‘Western Hemisphere and Europe from 1900 to 2001’. 89 Song and Tønnesson (2013), p. 239. See also Hodgson and Smith (1979).

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Tommy Koh and Budislav Vukas are further prominent voices that expressed concerns about UNCLOS’ potential to prevent conflicts.90 However, the Convention also provides states with a range of compulsory dispute settlement mechanisms, in which courts and arbitral tribunals play an important role.91 As the Permanent Court of Arbitration has demonstrated in the South China Sea Arbitration, these judicial bodies are quite capable of dealing with disputes on differing interpretations.92 Yet, it seems that as soon as a decision from a judicial body is sought, the possibility for perceived cynicism and the accusation of lawfare also arises. Lawfare is neither a traditional tool of interstate conflict, nor overtly aggressive, and is therefore difficult to grasp, both conceptually and when employed. Yet, by applying the concept of ‘legal warfare’ and by framing the Chinese actions during and after the arbitration as ‘lawfare’, it is possible to examine the underlying argumentation. China’s experiences with colonialism and the role of international law in it influenced the development of the concept of the ‘three warfares’ and ‘legal warfare’ in particular. In 1930, Chinese scholar Chen wrote in his book ‘New Public International Law’: ‘[T]he reason why China suffered humiliation, paid indemnities and ceded territories, was our ignorance of international law’.93 When applied to the South China Sea Arbitration, legal warfare forms part of the ‘three warfares’. In this strategy of hybrid warfare, legal warfare is supplemented by psychological and media warfare. As shown above, the manifold Chinese actions to undermine the Permanent Court of Arbitration’s authority can be analysed against this backdrop. The UN Convention on the Law of the Sea thus seems to be haunted by the colonial past of international law. The creation of a comprehensive convention aimed at establishing uniform regulations for a peaceful governance of the oceans has become entangled in historical disputes by touching on issues of sovereignty. The Philippines demanded that China adheres to the rule of law and accepts the award by the Permanent Court of Arbitration. China, however, argued that the members of the tribunal and the evidence considered in the arbitration were tainted by a Western and colonial bias. Its resistance against the arbitration can be interpreted as ‘legal warfare’, which has its ideological roots in China’s experiences with international law in the colonial past. As Anthea Roberts emphasised in her work on comparative international law, we are facing a ‘divisible college’ of international lawyers.94 In this vein, China’s critical approach towards the arbitration could also be seen as a genuine expression of such a divisible college.95 Roberts states:

90

Koh (2015), p. 108; Vukas (2006). Klein (2004). 92 Although the decision of the PCA to declare its jurisdiction was controversial. 93 The quote is taken from Chen (1984), p. 7. 94 Roberts (2017), p. 254. 95 Stefan Kroll takes a more nuanced view on China and its engagement with international law since the nineteenth century. He speaks of re-interpretation, i.e. the application and acceptance of 91

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Western scholars need to understand the perspective of Chinese scholars on the arbitration and vice versa if they are to gain a full appreciation of how this case is seen in different communities. It may also encourage them to reconsider some of the assumptions, arguments and narratives that are often taken for granted in Western circles.96

Yet, while agreeing with this statement, the question about its implications for the adherence to the Permanent Court of Arbitration’s award and the future of the rule of law remains.

5 Closing Thoughts: Cynicism and Lawfare Cynicism is primarily a question of perspective. As this chapter has shown, the South China Sea Arbitration seems to offer many opportunities for cynical positions. A cynic could argue that international law not only resolves conflicts through the guidance offered by its sources, but also enables them. Loosely referring to Peter Sloterdijk, it could be said: The states lift their masks, smile and expose the conflict regulating idea of new treaty law as masquerade—as it gives them the freedom to interpret legal sources with the goal to claim rights against others. Lawfare as an analytical category could be helpful from an academic perspective in highlighting the power of existing international law. However, the strategic use of lawfare in international relations seems dangerous if it undermines the actual rule of law and seeks to establish counter-narratives. From a Western perspective, there are serious concerns that China is cynical about the rule of law and is in fact employing lawfare in bad faith. China, on the other hand, may consider the Philippines, the USA, as well as the arbitration tribunal to be the true cynics by adhering to the narrative that international law is still dominated by the West and used as an instrument of power, putting China at a historical disadvantage today that has its roots in colonial times. These structures are perpetuated by using lawfare and cynically demanding China’s adherence to the rule of law. Peace and conflict research argues that disputes should not necessarily be perceived only as something negative, but that we must also consider their productive qualities—might the same apply to cynicism? Maybe what is (negatively) perceived as lawfare is an expression of a diverse scholarship and the struggle to come to terms with the colonial past of international law.

international law, with the aim of using it as best as possible for its own advantage. See Kroll (2012). 96 Roberts (2017), p. 254.

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Xu, H. (2014). Position Paper elaborates on South China Sea. China Daily. Retrieved 30 April 2020, from http://www.chinadaily.com.cn/kindle/2014-12/08/content_19043368.htm Yoshihara, T., & Holmes, J. R. (2011). Can China defend a ‘Core Interest’ in the South China Sea? The Washington Quarterly, 34(2), 45–59. Zhao, S. (2017). China and the South China Sea arbitration: Geopolitics versus international law. Journal of Contemporary China, 27(109), 1–15. Zhongsheng. (2016). Commentary: Hague-based arbitration panel oversteps in the South China Sea issue. People’s Daily Online. Accessed 30 April 2020, from http://en.people.cn/n3/2016/0512/ c98649-9056783.html Zhu, L. (2011). Chinese practice in public international law: 2010. Chinese Journal of International Law, 10(2), 427–468. Zou, K. (2015). The South China Sea. In D. Rothwell, A. O. Elferink, K. Scott, & T. Stephens (Eds.), The Oxford handbook of the law of the sea (pp. 626–646). Oxford: OUP. Zuo, A. (2018). China’s approaches to the Western-dominated international law. A historical perspective from the opium war to the South China Sea arbitration case. The University of Baltimore Journal of International Law, 6(1), 21–55.

Christian Pogies is a researcher at the Max Planck Institute for European Legal History, Frankfurt a.M., Germany.

Peace Through Law? The Role of the Law of the Sea Convention Put into Question Nele Matz-Lück

Abstract This comment is a reply to Christian Pogies’ chapter ‘Oceans of Cynicism? Norm-Genesis, Lawfare and the South China Sea Arbitration Case’. The author agrees with Christian Pogies’ definition of cynicism as primarily a question of perspective. Despite the inherent limitations of the UN Convention on the Law of the Sea in solving underlying sovereignty issues, however, it should neither be considered cynical nor an abuse of the law, nor lawfare when a state triggers the dispute resolution mechanism foreseen by the Convention. While post-colonial criticism of the Convention is partially valid, the treaty still represents a compromise between Western and non-Western states that is reflected in its core norms. On China’s rejection of the arbitral award drawing on such post-colonial criticism, she reminds us that despite what might be considered a problematic genesis, China made the sovereign decision to ratify the Convention and to bind itself to its rules through its consent. She concludes by stressing that despite its imperfections and valuable questions to be raised regarding the genesis and validity of its norms, the Convention on the Law of the Sea remains the primary source for a peaceful order of the ocean.

1 Introduction Since the 1899 Convention on the Pacific Settlement of International Disputes1 and the founding of the Permanent Court of Arbitration, there have been several multilateral efforts to provide for legal frameworks for the peaceful settlement of disputes to overcome the turn to warfare. As unsuccessful as the early efforts have been in the light of the two following world wars, the idea to establish legal rules and institutions for the judicial settlement of international disputes claims legitimacy until today. The

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The Hague, adopted 29 July 1899, entered into force 4 September 1900.

N. Matz-Lück (*) Kiel University, Kiel, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_10

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Charter of the United Nations2 (UN Charter) with Article 33 and the creation of the International Court of Justice3 are central examples to this effect. The proliferation of courts and tribunals since the founding of the UN is further evidence that international law and international dispute settlement bodies are perceived as important institutions to achieve and maintain international peace. In this context, the UN Convention on the Law of the Sea4 (‘UNCLOS’, or ‘the Convention’) with its focus on the compulsory settlement of disputes about the application and interpretation of the Convention, which covers a broad range of ocean related issues, is a milestone. The maintenance of peace through law is a core objective of the Convention, as can be seen from paragraphs 1 and 4 of the Preamble to the Convention. Part XV of the Convention establishes an elaborate and balanced system to settle disputes between the members. The chapter by Christian Pogies takes the example of the South China Sea Arbitration to question the role of the Convention to achieve and maintain peace by critically analysing the deficits in its genesis, the role of the arbitral tribunal and the behaviour of the parties in using or abusing the law of the sea. The chapter assumes that the norms established by UNCLOS, if viewed from a post-colonial angle, have rather contributed to the conflict instead of providing a suitable framework for dispute settlement. The discussion of treaties and other norms of public international law in the light of non-Western approaches and from a post-colonial perspective is topical and highly relevant for the law of the sea. In principle, judicial dispute settlement is expected to create peace by the acceptance and acknowledgement that justice is being done according to priorly agreed rules. These expectations clearly have not been met in the South China Sea Arbitration. The award has not settled the disputes between China and other states over the status of land features in the South China Sea, sovereignty over them, and jurisdiction over maritime zones in the South China Sea. From a cynical perspective, one could say that the South China Sea Arbitration had a peace-building effect only to the extent that it has united the involved parties and large parts of the international community in their rejection of the arbitral award, at least as far as the interpretation of Article 121(3) UNCLOS is concerned.5 The question of whether the arbitral tribunal had jurisdiction, the interpretation of Article 121(3) UNCLOS and the application of facts by the arbitrators have been faced with profound criticism from various sides and can have significant effects upon other boundary disputes if the interpretations and findings are transposed onto them.6 Even the Philippines, who had initiated the proceedings and whose position has been strengthened by the

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1 UNTS XVI. 33 UNTS 993. 4 1833 UNTS 397. 5 A critical legal analysis is given inter alia by Talmon (2018). A positive account on strengthening of obligations to protect the marine environment is given by Tanaka (2018), pp. 90–96. 6 See, e.g. the discussion by Song and Mosses (2018), pp. 768–798. 3

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award, have not praised their success but seem to distance themselves from the outcome of the case. Does that lead to the conclusion that the UN Convention on the Law of the Sea or the arbitral tribunal can be described as cynical? The chapter by Christian Pogies rightly suggests that cynical behaviour is a question of perspective. As a result, there are various ways to detect cynicism in the context of the South China Sea Arbitration: by China due to interpreting norms in an abusive way and aggressively communicating this legal perspective, by the Philippines for bringing the case to arbitration despite the limits of the tribunal’s mandate, by the arbitral tribunal and supporters by using the UN Convention on the Law of the Sea as an instrument of post-colonial hegemony. It also suggests that the hopes attached to the negotiations of the UN Convention on the Law of the Sea as the constitution of the oceans that will create peace by relying upon compulsory dispute settlement can be viewed from a more cynical perspective. In responding to some of the arguments raised in Christian Pogies’ chapter, two issues will be emphasised throughout the different subsections of this comment: the issue of different interpretations of the law and the principle of state consent.

2 The Inherent Limits of the United Nations Convention on the Law of the Sea The UN Convention on the Law of the Sea has been praised by many as the ‘constitution of the oceans’. It is a near-universal agreement that was adopted with the desire to comprehensively address different uses of the ocean by different groups of states on a global scale. One of the Convention’s primary objectives is to establish a balance of uses and interests of potentially all states to promote peace and stability. This necessarily results in compromise and ambiguities. Christian Pogies describes the Convention as the ‘new treaty’ that creates rules deviating from the customary international law which existed at the time of its adoption. He formulates the hypothesis that the ‘new treaty’ is evidence that international law can contribute to conflicts instead of preventing or settling them. We cannot assess if, generally speaking, conflicts would be more viably prevented or solved if the Convention had not been adopted and ratified or acceded by 168 parties. A very large number of states have become parties to the Convention because, apparently, they are of the political opinion that membership to the treaty is in their interest. So far, although this has been recommended to China in the aftermath of the South China Sea Arbitration, no state has left the treaty regime. The compromise that has been found along the different issues has had the effect that states can consent to the whole treaty with its set of 320 articles in the main text because the legal benefits vis à vis other states seem to outweigh the disadvantages. This comment agrees that the Convention and the dispute settlement mechanisms established in Part XV have not contributed to settling the specific dispute over land

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features and maritime zones in the South China Sea. Yet, there is significant doubt that this conflict would be any less grave without the Convention. From our perspective today, it is impossible to assess how customary international law on sovereignty and spatial jurisdiction over maritime areas would have evolved without the catalyst of the Convention. By now, the Convention to the broadest extent reflects (new) customary international law. It is true that the potentially high hopes concerning compulsory dispute settlement for the law of the sea disputes have not generally been realised under the current treaty regime. One reason may be that crucial issues are either excluded from obligatory dispute settlement under Article 297(2) and (3) UNCLOS or can be excluded by optional unilateral declaration (Article 298 UNCLOS). The latter provision concerns issues like maritime boundary delimitation, military activities, and law enforcement. Since many conflicts involve issues of sovereignty that are reflected in boundary issues and related questions, the UN Convention on the Law of the Sea and its mechanisms can only deal with parts of maritime conflicts, unless states decide otherwise. Yet, the Convention does not change the status quo that all states can employ all means of diplomatic and different judicial conflict resolution mechanisms to settle legal questions of sovereignty and boundaries. Moreover, the inherent limitations of the Convention are the consequence that states would only agree to compulsory dispute settlement under the condition that certain issues are or can be exempted from it under Articles 297 and 298 UNCLOS. Indeed, one can argue that because the Convention relies on the particularity that upon ratifying or acceding to it, consent to enter into dispute settlement and to accept a binding award or judgment is given in a general manner and not on a case-by-case basis, the resulting power must be exercised with caution by dispute settlement bodies. It would follow from such a consideration that the norms of jurisdiction must be interpreted narrowly, thereby limiting the scope of application of compulsory dispute settlement.7 In the particular case, the endeavour to engage international dispute settlement under the UN Convention on the Law of the Sea to ‘solve’ the dispute in the South China Sea Arbitration could not succeed. It was clear from the outset, that the arbitral tribunal could not address all underlying questions due to the limitation of its mandate to the application and interpretation of the Convention. By discussing highly relevant issues such as due diligence obligations for the protection of the marine environment, the interpretation of what distinguishes islands from rocks under Article 121(3) UNCLOS and the application to the land features in the South China Sea, the award addressed many important legal questions that are part of the broader dispute. At the same time, the award could not settle the question of sovereignty over the land features that generate jurisdiction over maritime zones. The Convention does not address sovereignty over land features and, consequently, such issues cannot be part of dispute settlement under Article 288(1) UNCLOS.

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See discussion by Guilfoyle (2018), pp. 51, 53.

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While the principle of ‘the land dominates the sea’ strongly influences legal entitlement over parts of the ocean and our thinking about the seas, the Convention as well as current customary law of the sea function as an auxiliary, once sovereignty over the land has been established. If this question is not settled, the law of the sea may theoretically regulate the extent of maritime zones depending upon the quality of the feature, but it cannot assign rights to a specific coastal state. Neither the norms of the UN Convention on the Law of the Sea nor the arbitral tribunal have communicated that they could solve more than the questions within their mandate. In this respect, the limitations of the dispute settlement procedure have been quite clear from the beginning. Does answering legal questions without being able to solve the underlying dispute display cynical behaviour? If the tribunal finds, as it did, that it has jurisdiction over the dispute and the legal questions raised by the applicant state, it is obliged to find an answer concerning the relevant application and interpretation of the Convention. In this respect, a decision on the status of the land features with consequences for the generation of maritime zones off these islands or rocks can be separated from the question of sovereignty over the features, although the underlying conflict remains. Moreover, with the decision of the rejection of the Chinese historical claims to waters, including land features, the arbitral tribunal has clarified an important aspect of entitlement over maritime space.

3 The Genesis of the United Nations Convention on the Law of the Sea: Expressions of Post-Colonial Hegemony? One of the questions raised by the chapter by Christian Pogies is what role the genesis of the UN Convention on the Law of the Sea plays in the context of cynical behaviour of the actors involved in interpreting, applying, and communicating about the norms enshrined in the treaty. The discussion of approaches other than the traditional Eurocentric perspective on public international law has gained growing recognition in recent years. Yet, the question remains what results from the characterisation of norms as being agreed in a Eurocentric, post-colonial context? Does that challenge the validity or legitimacy of the norms? Should the norms, if not formally changed, be at least interpreted differently today to consider other approaches? These questions seem to imply that there is one approach that could or should be put up against the dominating Western perspective. However, it is far from clear that there is one common ‘third world approach to international law’, despite growing academic discourse in this direction. The Chinese interest and understanding of public international law may be completely different from other ‘non-Western’ and indeed from other Asian perceptions. Hence, within the limits of the rules on interpretation states can promote the interpretation of the law that serves their interest best. They cannot, however, interpret the law contra legem or justify breaches of a

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treaty by referring to their interest, particular understanding of the law or historical circumstance. The genesis of the UN Convention on the Law of the Sea cannot be changed. The Convention is a package in more than one respect. It is a reflection of different interests, asymmetrical powers, customary law, and new concepts. It certainly is an instrument that has been generated in the Eurocentric Westphalian tradition of public international law-making. Like all other rules of international law—treaties and customary international law alike—it cannot be separated from power politics. There is a compromise in all the different subjects that have been regulated. Some compromises are obvious, and some are more disguised as parts of the famous, infamous ‘package deal’ that tied together otherwise unrelated subjects. Yet, it is questionable if the compromise found along different lines and topics is as flawed from the perspective of eurocentrism as the chapter by Christian Pogies implies when presenting the Chinese view. There is clear evidence of the postcolonial exercise of power as far as the modification of Part XI on the exploitation of the deep seabed is concerned. In this case, elements of the New International Economic Order (NIEO) were introduced during the negotiations with the support of newly independent states, only to be deleted in the ‘Implementation Agreement’. Without the latter, the Convention would not have received ratifications from industrialised states parties and would have failed to become the universal or at least quasi-universal constitution of the ocean. At the same time, the Convention with its recognition of different, potentially disadvantaged groups of states—landlocked, geographically disadvantaged, archipelagic and developing countries—, its emphasis of permanent sovereignty over natural resources, and the granting of exclusive economic zones seems less tilted in favour of industrialised Western states than other treaties.8 The rejection of historical titles, upon which China tried to rely, can be framed in the context of post-colonial hegemony. However, it can also be framed in the context of consent to a set of norms that reflect different trade-offs between the diverging interests of the negotiating states. Moreover, the concept of historical titles is by no means an exclusively Chinese issue. Canada has invoked the concept on parts of the Arctic waters.9 The reluctance by Western states to ratify the Convention, unless the parts on seabed mining were not amended to reflect the industrialised states interest, is a clear expression of power politics because it eventually forced changes to enable the entry into force of the (modified) Convention with significant membership. Yet, the circumstance that non-Western states were willing and eager to enter into the Convention, even if that involved sacrificing the elements of the NIEO in Part XI on seabed mining, seems to speak against perceptions as a purely post-colonial instrument of oppression.

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On further elements of the New International Economic Order and the relevance of interpretations of the Law of the Sea Convention in the South China Sea Arbitration that consider the drafting history, see Guilfoyle (2018), p. 63. 9 Singh and Koivurova (2018), pp. 386–412.

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The more formal argument in this context relies—again—on consent: China ratified the UN Convention on the Law of the Sea. While there certainly is an element of factually ‘coercing’ states into Eurocentric instruments by implying disadvantages if they remain outside the regime, many states with particular sovereignty or boundary issues like Turkey, Israel, or Venezuela have not joined the Convention. Likewise, the US, for reasons of sovereign rights concerning resource exploitation on the deep seabed, has not become a member.

4 Consent as the Basis of Modern Law of the Sea The element of state consent, which is a basis for the validity and legitimacy of public international law, gains particular weight in this context.10 By agreeing to treaty norms of public international law, states oblige themselves to comply in accordance with the rule of pacta sunt servanda. Due to treaties usually being perceived as either lex specialis or lex posterior, parties would generally no longer be able to rely upon prior customary international law unless it represents a norm of jus cogens.11 Even if China does not share the interpretation adopted by the arbitral tribunal concerning the relevance of historical titles, the award is binding because China has consented to accepting the outcome of compulsory dispute settlement. Therefore, the argument of a lack of jurisdiction by the tribunal is central to the Chinese rejection of the award. If the tribunal lacked jurisdiction, the award including the interpretation of the Convention on historical titles and Article 121(3) UNCLOS would be ultra vires. Acts outside the competence of an international institution are not covered by consent and transfers of sovereignty, and as a result would not have any binding force. The tribunal has been clear in its understanding, that reliance on historical titles over maritime space that generate sovereignty over the included land features, is a clear contradiction to the concept of ‘the land dominates the sea’ enshrined in the Convention. Whether customary international law before the adoption of the Convention has generally accepted arguments relying on historical title is unclear. In principle, states, including China, by agreeing to the system of maritime zones based upon sovereignty over land including the relevance of different land features such as islands, rocks, and low-tide elevations excluded arguments of historic title from the Convention. In the absence of current practice and opinio juris, historical titles can no longer be considered part of customary law on sovereignty claims over

On the role of state consent for economic and social rights, see Dominik Steiger, ‘In International Law We Shall Trust: (Even in) The Case of Economic and Social Rights’, in this volume. 11 On the relationship between the UNCLOS and customary international law, such a conclusion has been questioned in the context of the South China Sea Arbitration, see, e.g. Ma (2018), pp. 12, 15 et seq. 10

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maritime space. In the unilateral declaration made upon ratification, China reaffirmed ‘its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone which was promulgated on 25 February 1992’. While it is not clear if the basis for this claim is territorial sovereignty or historical title over the waters, China declared in a second communication to the UN Secretary General that ‘[t]he so-called Kalayaan Islands are part of the Nansha Islands, which have always been Chinese territory’, and goes on to say that ‘[t]he Chinese Government has stated on many occasions that China has indisputable sovereignty over the Nansha Islands and at the adjacent waters and resources’.12 From this statement, reliance upon sovereignty over territory as the basis for maritime claims becomes evident. Vietnam countered this declaration on its own, likewise claiming exclusive sovereignty over the islands.

5 Different Interpretations, Abuse of Law and ‘Lawfare’ One further relevant issue that is addressed by the chapter by Christian Pogies is the abuse of international law in the context of ‘lawfare’. The term itself contradicts the notion of ‘peace through law’ as a leitmotiv of the UN Convention on the Law of the Sea. However, behaviour that is in breach of public international law cannot be classified as an abuse of the law for other purposes or as ‘lawfare’. Neither would the breach itself necessarily be cynical, even if acceptance of an international rule in the consent-based system of public international law implies compliance. Yet, attempting to disguise a breach by communicating to other actors that there is a legal justification for the relevant behaviour can be perceived as cynical. It can amount to an abuse of potential legal justifications. The public classification by the German national-socialist government of Germany’s aggressive attack on Poland in 1939 that started the Second World War as an act of self-defence in responding to military force falls into this category as it implied that there was a justification. Likewise, what is perceived as the unlawful annexation of the Crimean peninsula has been presented as justified in accordance with a right to self-determination by Russia. While the annexation of the territory is a breach of the UN Charter, using the right to self-determination as a justification, although the preconditions are not met amounts to an abuse of law.13 At the same time, it is often far from easy to determine ‘what the law is’. That law is interpreted differently according to the political interest of states is a 12

Chinese government, Communication to the UN Secretary General (12 June 1985), p. 57. https:// treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXI/XXI-6.en.pdf. Accessed 30 May 2020. 13 For a more in-depth analysis of the concept of abuse of law, see the contributions in Part IV of this volume and the contribution by Dominik Steiger, ‘In International Law We Shall Trust: (Even in) The Case of Economic and Social Rights’, in this volume.

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commonplace. It is an inbuilt element or characteristic of international law and does not, as such, amount to an abuse of law. Yet, it has impacts on the discussion of breaches of international law or the abuse of legal arguments. Within the limits of the methods of interpretation, there is often large room for discourse. Under the euphemism ‘constructive ambiguity’ norms in international treaties are formulated deliberately vague to allow for different (potentially conflicting) interpretations.14 Under these circumstances, it is questionable if choosing the favourable interpretation over another can be described as cynical, and it would depend upon the circumstances if such behaviour would be qualified as ‘lawfare’. The role of dispute settlement in this context is a difficult one. If questions have been left open during the drafting of a multilateral treaty or formulated in a manner leaving room for different interpretations—like Article 121(3) UNCLOS—dispute settlement bodies find themselves in the situation that they must interpret the law with inter partes effect while contributing at the same time to the general interpretation and understanding of a convention. This includes the finding that a party cannot rely upon a certain interpretation of a treaty norm or has breached international law, which would pave the way for the secondary law on state responsibility. The South China Sea Arbitration is an example to that extent. However, to perform this task, as in the case of the arbitral tribunal in the South China Sea Arbitration, is not cynical. It is owed to the particularities of international law-making and the role assigned to dispute settlement bodies by agreement between the parties. The term ‘lawfare’ has been defined and used by Christian Pogies to describe and assess the behaviour of the actors in the South China Sea dispute. The term does not establish a legal category. In a narrow understanding, it describes the use and abuse of international law to continue the war with non-military means. If following the saying by Clausewitz, war is the continuation of politics by other means, it is important to note that politics cannot be separated from considerations of warfare and lawfare. In principle, law is one attempt to give military less potent states an instrument of support and protection against military conflicts. This is the underlying consideration of ‘peace through law’. As we have seen, this instrument is often not effective in protecting states and maintaining peace. Article 2(4) UN Charter is a prime example to that extent. Whether, in the light of these considerations, it is politically prudent to employ the law to initiate dispute settlement procedures to serve a primarily political function can be questioned. Yet, again this is due to international law being inseparably linked to politics. There is no such thing as a purely ‘objective’ international law. International norms that are objective or neutral in their genesis and their interpretation are an illusion. The UN Convention on the Law of the Sea is certainly no exception. Yet, this does not amount to cynicism as long as one does not pretend that norms just need to be ‘found’ or ‘realised’ without subjective perspectives and interests. As mentioned before, different interpretations are part of the legal discourse, and, in the case of the United Nations Convention on the Law of the Sea,

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For the Law of the Sea Convention, see the discussion by Guilfoyle (2018), pp. 51 et seq.

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the claim has been made that interpretations cannot be freed from a specific attitude on the treaty’s history.15 The question remains, whether states who, like the Philippines, are weaker than the other party from a military perspective, abuse the law if they engage in dispute settlement knowing that only a fraction of the underlying questions would potentially be solved. Is it cynical to communicate that proceedings will solve at least some of the legal questions involved in a more complex conflict? Is this lawfare? The purpose of the arbitral proceedings from the perspective of the Philippines was to show that some of the legal arguments employed by China, as well as certain practices, were incompatible with international obligations to which China had agreed. Knowing that China would not accept the proceedings and the results, initiating the dispute settlement could also be framed as ‘naming and shaming’. It is unlikely that there were any naïve political hopes to coerce China either into a change of practice or into diplomatic proceedings on a par with the Philippines. Instead, the proceedings might have been a politically motivated attempt to raise attention by blaming the other party in a conflict that involves law, history, and politics. At the same time, that does not amount to an abuse of law. It shows that law gives states the power to initiate formal and legally binding dispute settlement proceedings in the region of the South China Sea because of the status as a party to the UN Convention on the Law of the Sea.16

6 Concluding Remarks It is not lawfare to exercise a right given by the Convention even for the wrong purposes since the limitations of the Convention were clear. In the end, some important legal questions have been answered in the cause of the proceedings and have sparked further discourse. The only alternative would have been to do nothing or try to employ regional diplomatic mechanisms.17 In relation to China as well as to other regional or global hegemons, ‘small’ states do not have many other options but to seek the protection of international law even if it is imperfect. Likewise, in other conflicts which may be political at heart but have a legal side, states should be able to bring disputes to a pacific settlement without being accused of ‘lawfare’, if they lack alternatives, even if this will demonstrate the imperfections of international law ever more clearly because complex conflicts cannot be resolved by it. It was probably not a prudent political decision to bring the case, aside from the ‘unifying’ outcome of global rejection. Yet, it would be cynical to ask the Philippines to turn to negotiations

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Guilfoyle (2018), p. 52. Klein (2019), pp. 223, 240 et seq. concludes that the UNCLOS is not only the central legal framework to solve regional disputes but also a tool to reduce power differences between states. 17 Natalie Klein discusses different regional means for dispute settlement in the South China Sea before turning back to the UNCLOS as the central framework, see id., p. 230 et seq. 16

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or other diplomatic means and accuse them of ‘lawfare’ when turning to the dispute settlement of the UN Convention on the Law of the Sea, which is still otherwise communicated as the ‘heart’ or centre stone of the Convention. The chapter by Christian Pogies raises a variety of topical questions. It sheds a different and innovative light on a dispute that has been widely discussed in legal and political literature. Whether a turn to interpretations of the UN Convention on the Law of the Sea that take account of a post-colonial background will gain further ground in the future in legal literature and practice or whether the concept of state consent, that is itself an expression of the Westphalian state-centred notion of international law-making, continues to prevail remains to be seen. The questions concerning the validity and legitimacy of norms when approached from other perspectives have not yet been comprehensively answered in current discourse. However, in the meantime, in the view of this author, the UN Convention on the Law of the Sea, despite its imperfections and limitations, continues to be the primary source for a peaceful order of the ocean both from the perspective of substantive law and from formal dispute settlement.

References Guilfoyle, D. (2018). The South China Sea Award: How should we read the UN Convention on the Law of the Sea? Asian Journal of International Law, 8(1), 51–63. Klein, N. (2019). Dispute resolution and the Law of the Sea following the South China Sea Arbitration. In D. R. Rothwell & D. Letts (Eds.), Law of the Sea in South East Asia (pp. 223–241). Abingdon: Routledge. Ma, X. (2018). Merits award relating to historic rights in the South China Sea Arbitration: An appraisal. Asian Journal of International Law, 8(1), 12–23. Singh, K., & Koivurova, T. (2018). The South China Sea Award: Prompting a revived interest in the validity of Canada’s historic internal waters claim? Yearbook of Polar Law, 10, 386–412. Song, L., & Mosses, M. (2018). Revisiting ocean boundary disputes in the South Pacific in the light of the South China Sea Arbitration: A legal perspective. International Journal of Marine and Coastal Law, 33(4), 768–798. Talmon, S. (2018). The South China Sea Arbitration: Observations on the Award of 12 June 2016, Bonn Research Papers on Public International Law No. 14. Available via SSRN. Retrieved 31 May 2020, from https://ssrn.com/abstract¼3180037 Tanaka, Y. (2018). The South China Sea Arbitration: Environmental obligations under the Law of the Sea Convention, Review of European. Comparative & International Environmental Law, 27 (1), 90–96.

Nele Matz-Lück is Professor of Law at Christian-Albrechts-Universität zu Kiel, Germany, and co-Director of the Walther Schücking Institute for International Law, Kiel, Germany.

Part III

Cynicism in European Law and Sub-Fields of Public International Law

Assessing the Strategic Use of the EU Preliminary Ruling Procedure by National Courts Jesse Claassen

Abstract This chapter examines the cynicism in the strategic use of the EU preliminary ruling procedure by national courts. National courts not only refer preliminary questions to the Court of Justice of the European Union in case of doubts about the interpretation of EU law, but sometimes also make strategic use of the preliminary ruling procedure. With a strategic preliminary reference, a national court aims to overrule other Member State actors that otherwise fall outside the scope of its judicial review powers. This chapter explains that such strategic behaviour may be contrary to the spirit of the preliminary ruling procedure. Based on an empirical case study, it then examines what the motives are of national courts to make strategic preliminary references. Against that background, it is argued that strategic preliminary references can be qualified as different forms of cynicism. In one form, strategic preliminary references qualify as ancient cynicism, where the national courts’ behaviour is an expression of critique of the functioning of the EU’s judicial system. In their other form, these references may convey modern cynicism, where the national courts use their powerful position to further their own interests.

1 Introduction The EU’s preliminary ruling procedure has rightfully been hailed as the ‘keystone’ of the EU judicial system, with the prominent aim of securing the uniform interpretation of EU law.1 For the functioning of the procedure, the national courts of the EU Member States play a pivotal role. Ultimately, the procedure’s success depends on the willingness of the national courts to refer preliminary questions to the European

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ECJ, Opinion 2/13, ECLI:EU:C:2014:2454, para. 176.

J. Claassen (*) Radboud University, Nijmegen, the Netherlands © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_11

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Court of Justice (ECJ).2 This is especially true given the wide discretion that the national courts enjoy in deciding whether to make a preliminary reference.3 Lower national courts are in principle free in deciding whether to refer, as long as questions referred concern the interpretation of EU law and are relevant for the outcome of the dispute.4 In contrast, courts of last instance in principle have an obligation to refer when confronted with questions of EU law.5 However, with the acte clair doctrine, the courts of last instance can be exempted from their obligation to refer when the matter is so clear that it leaves ‘no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’.6 With such a broad concept and only limited guidance from the ECJ, the courts of last instance de facto enjoy considerable leeway in deciding whether to refer.7 In addition, the remedies for failure to refer rarely result in the finding of an infringement due to the high thresholds imposed.8 Because of the freedom that national courts enjoy in interacting and opening their national legal order to the ECJ, the preliminary ruling procedure provides an interesting case study to examine cynicism in European law. In this context, instances of cynicism have particularly been identified in several high-profile cases concerning primarily domestic constitutional courts that sought to impose their views on the ECJ through preliminary references.9 This chapter, however, focuses on an issue of a wider scale, namely that of ‘strategic’ preliminary references. Here the national courts use the preliminary ruling procedure to overrule other Member State actors that otherwise fall outside the scope of their judicial review powers. The chapter starts by introducing the concept of strategic preliminary references by national courts (Sect. 2). Thereafter, the cynical component is introduced by describing how these strategic preliminary references may be in conflict with the spirit of the preliminary ruling procedure (Sect. 3). To understand the motives underlying the strategic preliminary references, an empirical case study is then conducted on the national courts in the Netherlands (Sect. 4). Against that background, this chapter ultimately aims to conceptualise the cynicism in strategic preliminary references (Sect. 5).

2

Tridimas (2003), p. 37. The focus of this chapter is on questions of interpretation. Questions of validity are left aside, because they only constitute a very small amount of the preliminary references. 4 Article 267(2) Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C326/47 (TFEU). 5 Article 267(3) TFEU. 6 ECJ, Case 283/81 Cilfit v. Ministry of Health, ECLI:EU:C:1982:335, para. 16. 7 Kornezov (2016). 8 Broberg (2016), p. 255; Varga (2017). 9 See e.g. Bobek (2014) on the case Holubek by the Czech Constitutional Court; Claes and Reestman (2015) on the case Gauweiler by the German Federal Constitutional Court; Haket (2017) on the case Ajos by the Danish Supreme Court; Bonelli (2018) on the case Taricco II by the Italian Constitutional Court. 3

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2 Strategic Preliminary References Pierre Pescatore once held that the preliminary ruling procedure has effectively become ‘the infringement procedure for the European citizen’.10 Through a preliminary reference, domestic litigation may effectively lead to a similar result as under the EU’s infringement procedure, namely review of the conformity of national acts with EU law by the ECJ. In the case of a strategic preliminary reference, this similarity with the infringement procedure is not a mere side effect. It is the primary motive for the national court to make a preliminary reference. The objective of the national court is to overrule a Member State actor which normally falls outside the scope of its judicial review powers. The requested preliminary ruling of the ECJ functions as an authoritative endorsement of the national court’s envisaged judgment. In the political science literature, this reasoning in general is referred to as the ‘judicial empowerment thesis’.11 The preliminary ruling procedure empowers national courts in the sense that it allows them to extend their powers of judicial review to new actors. Recent studies show that judicial empowerment is still one of the main motives for national courts to refer preliminary questions,12 although it is argued that its impact has decreased over time.13 Three main situations can be distinguished where a national court would want to overrule another Member State actor. First, a national court may want to deviate from the case law of a higher national court, because it considers that case law to be contrary to EU law. A preliminary ruling of the ECJ may then provide the necessary support to convince the higher court, whereas the lower court’s judgment would otherwise most likely be overruled in appeal.14 Second, a national court may want a preliminary ruling from the ECJ to change the case law of other national courts that normally fall outside the scope of its review. These could either be courts in other Member States, or courts in the same Member State with a different competence. With a preliminary reference, the national court then makes use of the harmonising effect of the ECJ rulings, which extends to other Member States and fields of law.15 And third, the aim of a preliminary reference may be to convince non-judicial Member State actors, such as the legislature or administrative authorities, of a certain interpretation of EU law.16

10

Pescatore (2010), pp. 7–8. This theory is mainly attributed to Karen Alter; see Alter (1996). 12 Mayoral (2019), p. 385; Krommendijk (2019), p. 414; see also De Witte (2016), p. 17, who states that ‘it is quite evident that the main use of the preliminary reference made today is as a citizens’ infringement procedure’, although this is not further substantiated. 13 Pavone and Kelemen (2019), p. 354. 14 For concrete examples, see e.g. Krommendijk (2018), pp. 124–128. 15 For concrete examples, see e.g. Krommendijk (2019), p. 19. 16 For concrete examples, see e.g. id., p. 20. 11

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A textbook example of a successful strategic preliminary reference is the one made by the Bulgarian Sofia City Court in the case Ognyanov.17 The Sofia City Court initially referred non-strategic preliminary questions on the interpretation of the framework decision which was relevant for the criminal proceedings at hand.18 However, the Bulgarian legislation and case law contained very strict rules on the impartiality of judges. When referring preliminary questions, EU law requires the referring national court to set out the factual and legal context of the case in its order for reference.19 However, by doing so, the Bulgarian court was allegedly expressing a provisional opinion on questions of fact and law before deliberations had begun, which indicated a bias according to the Bulgarian system. Consequently, the panel of judges should disqualify itself, and the case should be re-allocated and examined anew by a different panel. If the referring judges would not do so, their judgment would be set aside, the case would be re-allocated and re-examined, and an action for damages would be brought against them for a disciplinary offence.20 Instead of disqualifying itself, the panel of judges responded by referring new preliminary questions which in essence challenged the validity of the Bulgarian system in the light of EU law. As Advocate General Bot rightfully states in his opinion, there was no doubt as to the answer to be given to the questions referred, and judging by the order for reference, the referring court was well aware of that.21 The purpose of the preliminary reference was to change the Bulgarian system.22 However, a strategic preliminary reference obviously does not always deliver the result envisaged by the national court. A good example of an unsuccessful strategic preliminary reference is the ECJ case X and Y concerning the automatic suspensory effect of the second appeal in asylum cases.23 In this case, the referring Dutch court sought the ECJ’s support against the Dutch legislature. The background to this issue was the European Court of Human Rights’ judgment in A.M. v. the Netherlands, in which the court held that the appeal before the highest Dutch court in asylum cases, the Council of State, was not an effective remedy because it did not have automatic suspensory effect.24 Under Article 35 of the European Convention on Human Rights, an applicant must exhaust all domestic remedies before proceedings before the European Court of Human Rights could be initiated. With the judgment in A.M. v. the Netherlands, asylum seekers could now go to the European Court of 17

ECJ, Case C-614/14 Criminal proceedings against Atanas Ognyanov, ECLI:EU:C:2016:514. ECJ, Case C-554/14 Criminal proceedings against Atanas Ognyanov, ECLI:EU:C:2016:835. 19 Article 94 of the Rules of Procedure of the Court of Justice (2013) OJ L173/65. 20 ECJ, Criminal proceedings against Atanas Ognyanov, supra note 17, paras. 4–11. 21 It is well-established case law of the ECJ that national courts may not be hindered in their competence to use the preliminary ruling procedure, starting with the case ECJ, Case 146/73 Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECLI:EU: C:1974:12, para. 3. 22 Opinion of AG Bot, Case C-614/14 Criminal proceedings against Atanas Ognyanov, ECLI:EU: C:2016:111, paras. 7, 12–13. 23 ECJ, Case C-180/17 X and Y v. Staatssecretaris van Veiligheid en Justitie, ECLI:EU:C:2018:775. 24 ECtHR, A.M. v. the Netherlands, App no 29094/09, 5 July 2016, paras. 67–70. 18

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Human Rights without an appeal before the Council of State, because remedies that are not effective do not have to be exhausted. This jurisprudence thus created the risk that applicants would go to Strasbourg after only one judgment of a first instance court. The Council of State would thereby de facto lose its position as court of last instance in asylum cases. In a subsequent judgment, the Council of State responded to this new situation. It held that it would go beyond its law-making task to solve the issue by attributing automatic suspensory effect to its judgments in asylum law itself. Rather, it would be for the legislature to change the national procedural legislation accordingly.25 The legislature, however, did not do so. The Council of State thus sought the support from the ECJ to force the Dutch legislature to solve its difficult position. In a subsequent case, it asked the ECJ with a preliminary reference whether EU law required that an appeal before it would have automatic suspensory effect. The attempt failed, however, because the ECJ replied in the negative to the questions referred.26

3 The Conflict with the Spirit of the Preliminary Ruling Procedure In the context of the rule of law backsliding in primarily Poland and Hungary, strategic preliminary references like in Ognyanov are often welcomed,27 or at least accepted as ‘the last resort’ to challenge authoritarian regimes.28 In such situations of obvious infringements of EU law, it is indeed hard not to sympathise with the referring national court. However, one should be careful not to consider these instances as the typical strategic preliminary reference. When a national court and another Member State actor disagree on the interpretation of EU law, and the court decides to challenge the other actor’s interpretation with a preliminary reference, it cannot be assumed that the referring national court is always right. Moreover, the cynical aspect of strategic preliminary references lies in the fact that, irrespective of the outcome, this practice can be at odds with the spirit of the preliminary ruling procedure. In several ways, the way national courts use the procedure may conflict with ECJ case law. First, with a strategic preliminary reference, the national court essentially asks the ECJ to rule upon the validity of national law in the light of EU law. It wants the ECJ to confirm that the other Member State actor is acting contrary to EU law. The validity of national law is, however, not a matter that can be referred to the ECJ under Article 267 TFEU. The ECJ has consistently held that in the preliminary ruling procedure, it cannot rule on the compatibility of national law with

25 Afdeling bestuursrechtspraak van de Raad van State, 20 December 2016, ECLI:NL: RVS:2016:3350, para. 3.6. 26 ECJ, X and Y v. Staatssecretaris van Veiligheid en Justitie, supra note 23, para. 44. 27 See e.g. Sikora (2018) and von Bogdandy and Spieker (2019). 28 See e.g. Bárd (2019).

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EU law. It can merely provide guidance on the interpretation of EU law to enable the referring court to make that assessment.29 It should be acknowledged, on the other hand, that in practice, the ECJ itself does not strictly adhere to this delineation either. Although the ECJ will formulate its answer cautiously, the judgments in essence often do amount to a review of the compatibility of national law with EU law. As De Witte put it rather cynically: ‘everybody knows this; but it seems better not to say it outright’.30 A different issue is that a strategic preliminary reference may essentially amount to a national court asking guidance for a dispute outside the national proceedings from which the questions originate. When the referring national court already has a clearly envisaged outcome for the dispute before it, that court does not need the guidance from the ECJ. It already knows how it wants to decide. The national court refers preliminary questions to prevent that other actors will overrule its envisaged judgment. As Advocate General Wahl has clearly illustrated in his Opinion in the case Gavrilescu, the application of the preliminary ruling procedure for its effects beyond the present dispute is at odds with the established case law of the ECJ.31 According to that case law, the requested answer of the ECJ must be relevant for the resolution of the dispute in the very procedure from which the preliminary questions originate.32 A preliminary reference cannot be justified by the fact that an answer of the ECJ might be useful for the referring national court in the context of other pending cases that raise similar issues, or of future cases that might be connected to the current proceedings.33 That does not mean, however, that every strategic preliminary reference will be declared inadmissible. In fact, most strategic preliminary references are simply answered by the ECJ, often without expressing serious concerns about the admissibility. This lack of enforcement by the ECJ can, however, be explained by the diplomatic stance and the lack of information on the ECJ’s side. One must be mindful of the fact that the strategic nature of a preliminary reference cannot always easily be identified. In most cases, it is impossible for the ECJ to make that assessment based on the information available to it, which consists primarily of the order for reference drafted by the referring national court. Not only does the ECJ have very little information. In the light of the ECJ’s reliance on the national courts’

29 See e.g. ECJ, Case C-292/92 Ruth Hünermund e.a. v. Landesapothekerkammer BadenWürttemberg, ECLI:EU:C:1993:932, para. 8; ECJ, Case C-151/02 Landeshauptstadt Kiel v. Norbert Jaeger, ECLI:EU:C:2003:437, para. 43; ECJ, Case C-428/14 DHL Express (Italy) and DHL Global Forwarding (Italy) v. Autorità Garante della Concorrenza e del Mercato, ECLI:EU: C:2016:27, para. 70. 30 De Witte (2016), pp. 17–19. 31 Opinion of AG Wahl, Case C-627/15 Dumitru Gavrilescu and Liana Gavrilescu v. Banca Transilvania and Volksbank România, ECLI:EU:C:2017:690, paras. 36–40. 32 ECJ, Case C-470/12 Pohotovosť v. Miroslav Vašuta, ECLI:EU:C:2014:101, para. 29. 33 See e.g. ECJ, Case C-225/02 Rosa García Blanco v. INSS and TGSS, ECLI:EU:C:2005:34, paras. 30–32; ECJ, Case C-155/11 PPU Bibi Mohammad Imran v. Minister van Buitenlandse Zaken, ECLI:EU:C:2011:387, paras. 19–20; see also Wahl and Prete (2018), pp. 531–532.

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willingness to refer, it must be very cautious not to offend referring national courts by declaring their preliminary references inadmissible. Against that backdrop, the ECJ affords preliminary questions a ‘presumption of relevance’. Only when it is ‘quite obvious’ that the questions are hypothetical, the ECJ will refuse to give a ruling.34 In most cases, the national courts will manage to stay below that threshold through their formulation of the order for reference. The case Eli Lilly is one of the exceptional cases where the referring national court explicitly acknowledged that the preliminary question would not affect the outcome of the present dispute, but only was relevant for pending and future cases before other national courts.35 That openness allowed the ECJ to let go of its cautiousness and declare the question inadmissible.36 The rationale behind these limitations of the ECJ’s jurisdiction in the preliminary ruling procedure is that there are other remedies for non-compliance with EU law by Member State actors.37 First, national courts themselves have the power to autonomously set aside conflicting national legislation and case law.38 Additionally, they are competent to award compensation for damage caused by infringements of EU law, on grounds of state liability.39 Therefore, they do not need the ECJ to correct any EU law violations in cases before them. Furthermore, when Member State actors violate EU law, a case can be brought before the ECJ via the infringement procedure under Article 258–260 TFEU. For these cases, the Treaties prescribe a less judicialised procedure divided into four stages, of which only the last one is the referral of the issue to the ECJ. The first three pre-litigation stages consist of interaction between the European Commission and the Member State, first on an informal and confidential basis in the pre-contentious stage, and then formally with a letter of formal notice and a reasoned opinion.40 These pre-litigation stages are highly effective, because the large majority of the cases are solved here. Only in

34 ECJ, Case C-62/14 Peter Gauweiler e.a. v. Deutscher Bundestag, ECLI:EU:C:2015:400, para. 25. 35 The referring national court did not explicitly aim to overrule the national courts in these further cases, but instead wanted to ensure that the cases would be decided based on the guidance by a ruling of the European Court of Justice. This example therefore does not fit the definition of a strategic preliminary reference used in this chapter, but the same rationale can be applied. 36 ECJ, Case C-239/19 Eli Lilly and Company v. Genentech, ECLI:EU:C:2019:687, paras. 18–22. 37 See Pech and Kochenov (2019), pp. 1–2, who argue that even in the context of rule of law backsliding, the EU’s toolbox ‘is already sufficiently comprehensive and sophisticated in nature to, at the very least, contain rule of law backsliding if the full set of current instruments is used promptly, forcefully and in a coordinated manner’. 38 ECJ, Case C-106/77 Amministrazione delle finanze dello Stato v. Simmenthal, ECLI:EU: C:1978:49, para. 21; ECJ, Case C-614/14 Criminal proceedings against Atanas Ognyanov, supra note 17, para. 35. 39 ECJ, Joined Cases C-6/90 and C-9/10 Andrea Francovich e.a. v. Italian Republic, ECLI:EU: C:1991:428, para. 37. 40 See Craig and De Búrca (2015), pp. 434–435, who refer to these stages as the ‘elite cooperation’ dimension of the infringement procedure.

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very few cases, the European Commission must resort to proceedings before the ECJ.41

4 Empirical Case Study: The Netherlands After the foregoing theoretical assessment of strategic preliminary references and their incompatibility with the ECJ case law, this section empirically analyses the attitudes of national courts towards such strategic behaviour. This is done based on a case study on the Netherlands over the period 2013–2017. The focus is thereby on four varying fields of law: asylum,42 competition,43 consumer,44 and criminal

41 To get an impression: according to the report in 2017, 96.8% (789 out of 815) of the cases closed that year did not reach the ECJ; see Report from the Commission 2017—Annual report on monitoring the application of EU law, COM(2018) 540. 42 Limited here to the Dublin system (Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (2003) OJ L050/1; Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person (2013) OJ L180/31; Commission Regulation (EC) No 1560/ 2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national (2003) OJ L 222/3). In the Netherlands, this area falls under the jurisdiction of specialised administrative courts. 43 Limited to the cartel prohibition and the related instruments (Article 101 TFEU; Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (2003) OJ L1/1; Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (2014) OJ L/349/1). In the Netherlands, the public enforcement falls under the jurisdiction of specialised administrative courts, whereas the private enforcement falls under the general civil law jurisdiction. 44 Limited here to what the Commission qualifies as the core of EU consumer law, because it applies horizontally to all sectors: Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1993) OJ L95/29; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (1998) OJ L80/27; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (1999) OJ L171/12; Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (2005) OJ L149/22; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (2009) OJ L110/30; Directive 2011/83/EU of the European Parliament and of

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Table 1 Overview of preliminary references Asylum 1. Case C-158/13 Rajaby 2. Case C-63/15 Ghezelbash 3. Joined Cases C-47–48/17 X 4. Case C-213/17 X 5. Joined Cases C-582–583/17 H

Competition 1. Case C-413/13 FNV

Consumer 1. C-497/13 Faber

Criminal None

procedural law.45 Different behaviour is expected based on primarily three factors: the stage of development of EU law in each field, the sensitivity of the area, and the level of specialised EU law knowledge of the respective courts. The scope is quite narrow because an in-depth analysis is required for an adequate assessment of these references. To adequately identify strategic motives for referral, a multi-method approach is used, combining semi-structured interviews with domestic judges, and case law analysis. The case law analysis examines whether strategic preliminary references have been made, and if not, whether there were potential cases in which strategic preliminary references would have been possible. Within this selection, seven preliminary references were made (see Table 1). To get an overview of each field of law, one specialised Dutch journal for each field has been browsed.46 Potential preliminary references were identified by searching for contradictory lines of case law, and case law and legislation that has been strongly criticised or actually set aside without a preliminary reference. The results of the case law analysis have then been the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (2011) OJ L304/64. Only Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (2006) OJ L376/21 is omitted because it mainly deals with business-to-business practices. See Commission Staff Working Document, Report on the Fitness check of consumer and marketing law, SWD (2017) 209, p. 5. In the Netherlands, this area falls under the general civil law jurisdiction. 45 Limited to Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (2004) OJ L261/15; Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (2010) OJ L280/1; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (2012) OJ L142/1; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (2012) OJ L315/57; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (2013) OJ L294/1. In the Netherlands, this falls under the general criminal law jurisdiction. 46 The journals are Jurisprudentie Vreemdelingenrecht for asylum law, Markt & Mededinging for competition law, Tijdschrift voor Consumentenrecht & Handelspraktijken for consumer law, and Delikt & Delinkwent for criminal procedural law.

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Table 2 Overview of interviewees First instance Appeal Cassation

Asylum Five judges Three judges Not applicable

Competition Five judges Four judges Six judges

Consumer Three judges Four judges Two judges

Criminal Four judges Three judges Three judges

tested in the interviews where possible. However, to ensure the anonymity of the interviewees, no references to the interviews can be made on specific cases. Interviews were conducted with national judges that were active in the selected fields of law in the specified timeframe (see Table 2). The selection of interviewees aims to provide a complete picture by including a wide variety of judges. On the first and second instance level, judges were selected from at least two different locations. Furthermore, the selection includes judges with varying experience with the preliminary ruling procedure: repeat players, one-shotters and non-referrers. The interviews were conducted at the location of each interviewee. The interviews did not only concern the strategic use of the preliminary ruling procedure, but dealt with motives when deciding to refer in general. Each interview started with open questions about these motives, asking for concrete examples where possible. Thereafter, judges were asked about their opinion on specific motives identified in the literature and from the case law analysis. The anonymity of the interviewees must be guaranteed for them to speak freely. Each interviewee was therefore assigned a random number between 1 and 99. No reference was made in situations where certain statements can easily be traced back to individual persons. All judges are referred to as male, regardless of their actual gender.

4.1

Strategic Preliminary References in Practice

Within the scope of the case study, three actual strategic preliminary references have been identified, all three in the field of asylum law, and all three with the aim of empowerment against the higher national court. In Rajaby, the first instance court dealt with a case where it found that the national decision authorities had committed an obvious infringement of EU law. However, the asylum seeker had not invoked the right provisions of EU law, and according to the case law of the highest court, it was not allowed to apply those provisions ex officio. On the other hand, the first instance court saw room in the case law of the ECJ that could allow for ex officio application in the current situation. Consequently, the first instance court referred preliminary questions, basically asking the ECJ to confirm that in case of an obvious infringement as in the current proceedings, it is permitted to apply the relevant EU law provisions ex officio.47 However, the case had to be withdrawn before the ECJ could

47

Rechtbank Zwolle, 22 March 2013, ECLI:NL:RBDHA:2013:BZ5462, para. 2.5.5.

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answer. Apparently in response to the preliminary reference, the national decision authorities changed their mind and granted the asylum seeker in question a positive decision, which ended the dispute.48 The preliminary references leading to the case Ghezelbash, and the joined cases X, both followed from a similar discontent with the case law of the higher national court. In Ghezelbash, the first instance court had serious doubts about the view of the highest court that its case law concerning the old Dublin II Regulation could simply be continued under the new Dublin III Regulation.49 In its preliminary ruling, the ECJ held that those doubts were correct, and that the highest national court was indeed wrong.50 And in X, the first instance court questioned a judgment of the highest court regarding the time limits under the Dublin system. The highest court had decided without a preliminary reference on the ground that the matter was an acte clair.51 Again, following the preliminary reference, the ECJ confirmed the doubts of the referring first instance court.52 As said, no strategic preliminary references were identified in the other fields of law. However, in all three fields, there were definitely cases that could have led to strategic references. In the field of competition law, there was for example a clear divergence between the case law of the administrative and the civil courts. The question was whether the appreciability requirement under Article 101 TFEU is deemed fulfilled when the restrictive conduct qualifies as a restriction by object. Over a period of six years, both courts had plenty of opportunities to refer preliminary questions to convince the other of their view. However, the civil courts eventually followed their administrative law counterparts without interference from the ECJ.53 Similarly, in the field of consumer law, the Dutch courts for example demonstrated very different approaches on the ex officio application of the EU consumer rules. A preliminary reference could then have been a way for one of these courts to convince the others of its approach.54 And in the field of criminal procedural law, the highest court for several years omitted to rule that the Dutch legislation on the right to legal assistance during interrogation was not in line with EU law.55 The lower courts did not seek the assistance of the ECJ to challenge this highly criticised stance. All courts within the case study thus had the possibility to refer strategic preliminary references, but only the first instance asylum courts actually did so. 48

ECJ, Case C-158/13 Hamidullah Rajaby v. Staatssecretaris van Veiligheid en Justitie, ECLI:EU: C:2013:455. 49 Rechtbank’s-Hertogenbosch, 2 February 2015, ECLI:NL:RBDHA:2015:1004, para. 21. 50 ECJ, Case C-63/15 Mehrdad Ghezelbash v. Staatssecretaris van Veiligheid en Justitie, ECLI:EU: C:2016:409, para. 61. 51 Rechtbank Haarlem, 23 January 2017, ECLI:NL:RBDHA:2017:873, paras. 15–17.3; Rechtbank Haarlem, 23 January 2017, ECLI:NL:RBDHA:2017:873, paras. 23–26. 52 ECJ, Joined Cases C-47/17 and C-48/17 X and X v. Staatssecretaris van Veiligheid en Justitie, ECLI:EU:C:2018:900, para. 90. 53 Van der Weide (2018), pp. 90–95. 54 Spanjaard (2016), p. 281. 55 Altena-Davidsen (2016), pp. 156–157.

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Motives Behind Strategic Preliminary References

As explained in Sect. 2, strategic preliminary references can be a means of empowerment against three categories of actors: higher national courts, other domestic courts, and other Member State actors such as the legislature. Based on the interviews and the case law analysis, empowerment against a higher national court is the most important motive for strategic preliminary references. According to the interviews, this motive enjoys the most support from the specialised judges in the fields of asylum56 and competition law,57 and from second instance civil courts.58 Most first instance civil court judges, and criminal court judges, either oppose to strategic preliminary references,59 or never considered making one.60 A possible explanation for this division could be that due to the higher level of specialisation, the judges in favour of strategic preliminary references both have stronger ideas on how ‘their’ field of law should be understood, and have a deeper knowledge and thus more confidence in their interpretations of the law. Consequently, they will sooner seize the opportunity that the preliminary ruling procedure provides to defend their views, than less specialised judges who do not have this strong affinity with the different areas of law that they deal with. This strong affinity is nicely exemplified by an asylum judge who qualifies himself as ‘a motivated asylum judge with an exceptional interest in EU law’.61 Moreover, he states that the case law of the highest court occasionally gives him ‘a bad taste in his mouth’.62 Similarly, another asylum judge says that he can be ‘very unhappy’ with the interpretations of the highest court and the grounds they provide.63 In contrast, a first instance civil judge feels that he is not here ‘to prove that he is right’. He will follow the highest court regardless of how it decides.64 This open stance towards what will happen in appeal can be explained for the first instance civil and criminal judges by the fact that they are the first of three instances. Consequently, their primary perceived task is to provide a first solution to the disputes brought before them.65 In the areas of asylum law and public enforcement of competition law, where there are only two instances, and in second instance in civil and criminal law, questions of law become more important and interpretations thereof can thus more often become a matter of principle.

56

Interviews 39, 65, 83, 89. Interviews 2, 9. 58 Interviews 5, 61, 96. 59 Interviews 14, 33, 54, 63. 60 Interviews 31, 56, 75, 91. 61 Interview 39. 62 Id. 63 Interview 65. 64 Interview 63. 65 Interviews 31, 56, 63. 57

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In addition to the strong affinity, the judges who support the idea of strategic referral as a way of empowerment against higher courts, all share the feeling that there is no other possibility to uphold their interpretation of EU law. The judges who oppose to this view, point to the possibility to engage in a direct judicial dialogue with the higher courts. With a well-substantiated judgment, a lower court can try to convince the higher courts or invite them to reconsider their case law.66 Some judges refer to informal contact as an alternative to settle such differences of opinion.67 However, the judges who are in favour are convinced that if they would simply render a judgment, it would not hold in appeal. They argue that when they deviate from the highest court’s case law, their judgment is bound to be appealed. And in appeal, they feel that the higher courts are unwilling to deviate from their established case law. This feeling of almost distrust is particularly strong in asylum law. One asylum judge claims that the highest court shows that it is unwilling to refer preliminary questions, by ignoring clearly contradictory lines of case law and calls for clarification by lower courts.68 Another one has seen other colleagues attempt to convince the highest court, but with no result.69 A third asylum judge speaks of ‘a difficult relationship’ between the highest court and the lower courts, that has, however, improved in recent years.70 Where empowerment against higher courts thus seems to be quite an accepted motive for strategic use of the preliminary ruling procedure under certain types of judges, the second category—empowerment against other domestic courts, such as those in other fields of law or other Member States—seldom seems to be a motive in practice. Some judges mention the tax chamber of the Dutch Supreme Court as a court that makes strategic preliminary references to ensure compliance with EU law in other Member States. As a possible explanation, one judge raises the fact that the field of tax law is a relatively small community. The litigants are generally the same repeat players, and the interviewee believes that there is more substantive discussion between the different Dutch courts in the field. That ‘community feeling’ may result in the view that courts in other Member States should follow their lead.71 However, that feeling does not seem to be present in the selected fields of law. Several judges argue that they see it as their task to settle the disputes that are brought before them. They are not concerned with general theory building in a broader context.72 Other judges who do see a certain law-making task for themselves, state that this task is primarily limited to the domestic level.73

66

Interviews 14, 63. Interviews 75, 91. 68 Interview 39. 69 Interview 83. 70 Interview 65. 71 Interview 87. 72 Interviews 40, 79, 80, 97. 73 Interviews 70, 89. 67

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Finally, the third motive of empowerment against other Member State actors also seems to play a fairly limited role in practice. The only judges who seem to be positive about this type of strategic references are the first instance asylum judges. Empowerment from the ECJ is used by them to ensure compliance by the national decision authorities.74 One first instance asylum judge mentions that after issuing five judgments condemning the practice of the national authorities, other first instance asylum courts still followed the reasoning of these authorities. A preliminary reference could then provide a solution.75 Surprisingly, the judges from the highest court do not encounter the same problems, despite dealing with exactly the same authorities. They indicate that they do not need support from the ECJ to set aside domestic practices or legislation.76 Some of the other judges state that they can imagine that empowerment against the legislature is a motive in other Member States where the relationship between the judiciary and the legislature is different.77 However, most judges cannot imagine that it would play a role for them.78 One judge suggests that the opposite may sometimes even be true: a national court does not want to refer preliminary questions, because that may have negative consequences for his national system. Especially for lower courts, he could imagine that such reasoning could play a role.79 One criminal judge seems to confirm this possibility. He indicates that he has a stronger orientation towards the wishes of his national parliament than to the EU legislature. Consequently, he does not really feel inclined to invoke EU law to overrule domestic legislation.80 In a similar fashion, another criminal judge raises principled objections against the ‘activist attitude’ behind strategic references. In his opinion, a judge should not intervene with the tasks of the legislature. The only exception may be when the legislature leaves a gap in the system. However, it would then be enough to signal this in his own judgment instead of making a preliminary reference.81 For these criminal judges, a lack of affinity with EU law thus works against the strategic use of the preliminary ruling procedure.

74

Interviews 65, 89. Interview 65. 76 Interviews 27, 93. 77 Interviews 40, 79, 86, 97. 78 Interviews 2, 5, 12, 31, 76, 80, 87. 79 Interview 87. 80 Interview 12. 81 Interview 80. 75

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5 The Cynicism in Strategic Preliminary References The previous sections have illustrated how, and on what grounds, national courts may act contrary to the spirit of the preliminary ruling procedure by making strategic preliminary references. At first sight, the story of national courts consciously deviating from the case law of the ECJ in an attempt to defend their views, sounds a lot like cynicism in its everyday meaning, somewhere along the lines of ‘the believe that people are only interested in themselves and are not sincere’.82 However, upon closer inspection, it turns out not to be that easy to conceptualise the cynicism in strategic preliminary references. According to Sloterdijk, cynicism in its ancient Greek understanding was a form of independent thinking used as a basis for critique of the idealism of the powerful (ancient cynicism). Sloterdijk contrasts this concept with a modern understanding of cynicism, which is instead used by the powerful to strengthen their own idealism.83 As the editors explain in their introduction, modern cynicism does not refer to a ‘bold critique of power’, but to a ‘strategy of furthering one’s interests by pragmatic or, if you will, tactical behaviour’. In a legal context, modern cynicism thus translates to ‘uses and abuses’ of the law that are ‘meant to further the one-sided interests of certain actors’ by trying to ‘profit from the legitimacy of lawful conduct, while arguably acting against the spirit of the law’.84 In both understandings, the first step would be to establish who ‘the powerful’ are. However, in the context of the preliminary ruling procedure, and arguably in international law in general, it is not that evident who ‘the powerful’ are. Based on a formalistic approach, the power is the supranational EU legal order, in which the ECJ, as the highest court, is the powerful. Article 19(1) of the Treaty on European Union stipulates that the ECJ ‘shall ensure that in the interpretation and application of the Treaties the law is observed’.85 In that line of reasoning, strategic preliminary references by national courts could be qualified as a manifestation of ancient cynicism. The preliminary ruling procedure was clearly not intended to be used in the strategic way that national courts use it at times. The use of the preliminary ruling procedure beyond its intended purpose, and despite the alternative tools that the EU judicial system provides, could be seen as a form of critique of that system, expressing the feeling of judges with a strong EU law affinity that they are unable to uphold the law under the current framework. In the view of these national judges, it is justifiable to depart from the ‘original’ EU judicial framework, because that framework is lagging behind and fails to acknowledge the gaps in its practical functioning. In this ancient cynical sense, strategic preliminary references could thus be seen as a symptom of an underlying deficiency in the EU system of judicial protection.86 Moreover, strategic preliminary references can also be seen as a form of 82

See e.g. the definition in the Cambridge English Dictionary: https://dictionary.cambridge.org/ dictionary/english/cynical. Accessed 27 January 2020. 83 Sloterdijk (1983), p. 222. 84 Björnstjern Baade et al., How (Not) to Be Cynical in International Law, in this volume. 85 Consolidated Version of the Treaty on European Union (2012) OJ C326/13. 86 Compare Bárd (2019).

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ancient cynicism from the domestic perspective. The national courts depart from the traditional domestic relationships between, for example, higher vis-à-vis lower courts, or the judiciary vis-à-vis the legislature and executive. However, the courts do so to criticise EU law application by these Member State actors that would normally fall outside the scope of the courts’ power of judicial review. On the other hand, the previous sections have already questioned whether ‘the power’ actually lies with the EU and the ECJ. In the context of the preliminary ruling procedure, the ECJ only has so much power as the national courts are willing to give it. The position of the ECJ is dependent on the willingness of national courts to provide it with preliminary references.87 From the point of view of the national courts, that willingness is not self-evident. Aside from strategic preliminary references, there is not that much to gain from a preliminary ruling for the average national court, while the practical downsides of extra workload and delayed proceedings are evident. In the light of that dependency relationship, it could be argued that the power factually lies with the national courts in the preliminary ruling procedure. From that perspective, the strategic use of the law contrary to its spirit can be seen as abuse of the national courts’ power in the sense of the editor’s modern understanding of cynicism. The question is then, however, how the second element of ‘furthering one’s personal interests’ should be applied. The way judges frame the need to resort to strategic behaviour, as a means to uphold ‘their’ views on the law that they so strongly believe in, because these views under the ‘normal’ system would be overruled by other actors, initially sounds a lot like self-interest. However, such a strict interpretation may sometimes lead to rather unsatisfactory outcomes. From a procedural point of view, a preliminary reference that is contrary to the spirit of the procedure is always harmful in the sense that the ECJ is wrongfully burdened by the national court. But from a substantive point of view, a strategic preliminary reference may still have unintentional positive effects, despite being motivated by self-interest. These effects are partially outside the control of the national court, because the outcome of a strategic preliminary reference is not only decided by the referring national court, but is also subject to the confirmation by the ECJ in a preliminary ruling. When the ECJ does not confirm the national court’s view, such as in the case concerning the Dutch Council of State and the automatic suspensory effect of appeal, the self-interest of the national court is illustrated rather clearly, and the behaviour can rightfully be qualified as ‘cynical’. The subjective element of self-interest in the definition of cynicism becomes problematic, however, when the ECJ confirms the view of the referring national court, as in the case Ognyanov. Where a strategic preliminary reference is successful in the sense that the ECJ confirms the view of the referring national court, the outcome is namely not only in the interest of the referring

87 Tridimas (2003), p. 37; see also the call on the Dutch national courts to refer more preliminary questions by Prechal, the Dutch judge at the ECJ, at the presentation of the Court’s 2016 annual report: http://www.mr-online.nl/rechters-stel-vragen-aan-europees-hof/. Accessed 27 January 2020.

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national court, although it is the underlying motivation for the national court’s action. The confirmative judgment of the ECJ will cause a Member State actor who was apparently acting contrary to EU law to end its violation, which is in the general EU law interest. With a strategic preliminary reference, it is thus possible that the national court acts contrary to the spirit of the law based on its powerful position, aiming to further its own interests, but thereby contributing to the general interest of EU law in cooperation with the ECJ. In that scenario, it does not seem reasonable to give the negative qualification of ‘cynicism’ to such behaviour. The positive outcome for the general EU law interest seems to justify the initial self-interest of the national court. Or phrased differently: the eventual outcome seems to be able to make a strategic preliminary reference a justifiable means to a positive end. In that light, a concept of cynicism with a mere focus on subjective intentions does not always seem to yield fully satisfactory outcomes. It is therefore worth considering whether the concept of cynicism should not look beyond the subjective intentions of the actor and consider the broader consequences of its behaviour.

References Altena-Davidsen, J. G. H. (2016). Europees Strafrecht. Delikt & Delinkwent, 46(3), 150–158. Alter, K. (1996). The European Court’s political power. West European Politics, 19(3), 458–487. Bárd, P. (2019). Luxemburg as the last resort: The Kúria’s Judgment on the illegality of a preliminary reference to the ECJ. Verfassungsblog. Retrieved 27 January 2020, from https:// verfassungsblog.de/luxemburg-as-the-last-resort/ Bobek, M. (2014). Landtová, Holubec, and the problem of an uncooperative court: Implications for the preliminary rulings procedure. European Constitutional Law Review, 10(1), 54–89. Bonelli, M. (2018). The Taricco Saga and the consolidation of judicial dialogue in the European Union: CJEU, C-105/14 Ivo Taricco and others, ECLI:EU:C:2015:555; and C-42/17 M.A.S., M.B., ECLI:EU:C:2017:936 Italian Constitutional Court, Order no. 24/2017. Maastricht Journal of European and Comparative Law, 25(3), 357–373. Broberg, M. (2016). National courts of last instance failing to make a preliminary reference: The (possible) consequences flowing therefrom. European Public Law, 22(2), 243–256. Claes, M., & Reestman, J.-H. (2015). The protection of national constitutional identity and the limits of European integration at the occasion of the Gauweiler Case. German Law Journal, 16 (4), 917–970. Craig, P., & de Búrca, G. (2015). EU law. Text, cases, and materials (6th ed.). Oxford: OUP. de Witte, B. (2016). The preliminary ruling dialogue: Three types of questions posed by national courts. In B. de Witte et al. (Eds.), National courts and EU law. New issues, theories and methods (pp. 15–25). Cheltenham, England: Edward Elgar. Haket, S. (2017). The Danish Supreme Court’s Ajos judgment (Dansk Industri): Rejecting a consistent interpretation and challenging the effect of a general principle of EU law in the Danish legal order. Review of European Administrative Law, 10(1), 135–151. Kornezov, A. (2016). The new format of the Acte Clair Doctrine and its consequences. Common Market Law Review, 53(5), 1317–1342. Krommendijk, J. (2018). The preliminary reference dance between the CJEU and Dutch courts in the field of migration. European Journal of Legal Studies, 10(10th Anniversary Special Issue), 101–154.

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Krommendijk, J. (2019). The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice. European Law Journal, 25(4), 394–415. Mayoral, J. A. (2019). Judicial empowerment expanded: Political determinants of national courts’ cooperation with the CJEU. European Law Journal, 25(4), 374–393. Pavone, T., & Kelemen, R. D. (2019). The evolving judicial politics of European Integration: The European Court of Justice and national courts revisited. European Law Journal, 25(4), 352–373. Pech, L., & Kochenov, D. (2019). Strengthening the rule of law within the European Union: Diagnoses, recommendations, and what to avoid. Policy brief. Retrieved 27 January 2020, from https://reconnect-europe.eu/wp-content/uploads/2019/07/RECONNECT-policy-briefPech-Kochenov-2019June-publish.pdf Pescatore, P. (2010). Van Gend en Loos, 3 February 1963: A view from within. In M. Poiares Maduro & L. Azoulai (Eds.), The past and the future of EU law: The classics of EU law revisited (pp. 3–8). Oxford: Hart. Sikora, A. (2018). The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018. EU Law Analysis. Retrieved 27 January 2020, from http://eulawanalysis.blogspot.com/2018/08/the-cjeu-and-rule-of-law-in-poland-note. html?utm_source¼feedburner&utm_medium¼email&utm_campaign¼Feed%3A +EuLawAnalysis+%28EU+Law+Analysis%29 Sloterdijk, P. (1983). Kritik der zynischen Vernunft. Frankfurt am Main, Germany: Suhrkamp. Spanjaard, J. H. M. (2016). Algemene Voorwaarden 2015–2016. Tijdschrift voor Consumentenrecht & handelspraktijken, 273–284. Tridimas, T. (2003). Knocking on Heaven’s door: Fragmentation, efficiency and defiance in the preliminary ruling procedure. Common Market Law Review, 40(1), 9–50. van der Weide, C. (2018). Expedia en Groupement des cartes bancaires nu ook civielrechtelijk merkbaar. Markt & Mededinging, 20(2), 90–95. Varga, Z. (2017). National remedies in the case of violation of EU law by Member State courts. Common Market Law Review, 54(1), 51–80. von Bogdandy, A., & Spieker, L. D. (2019). Countering the judicial silencing of critics: Novel ways to enforce European values. Verfassungsblog. Retrieved 27 January 2020, from https:// verfassungsblog.de/countering-the-judicial-silencing-of-critics-novel-ways-to-enforce-euro pean-values/ Wahl, N., & Prete, L. (2018). The gatekeepers of Article 267 TFEU: On jurisdiction and admissibility of references for preliminary rulings. Common Market Law Review, 55(2), 511–547.

Jesse Claassen is a PhD candidate at the Department of International and European Law of the Radboud University, Nijmegen, the Netherlands.

In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism Caroline Omari Lichuma

Abstract Despite a promising start in the Universal Declaration of Human Rights, economic and social rights still retain a second-class status in most national jurisdictions. What explains this reticence with which economic and social rights are (still) regarded? This chapter analyses how the sceptical gaze through which states view economic and social rights legitimises (or attempts to legitimise) government failures to provide for those members of their populace who are in most desperate need, and (unsuccessfully) masks the self-interest that pervades most of international law. The chapter commences with a brief introduction and subsequently proceeds in three subsequent parts. Section 2 demonstrates that cynicism was used as a sword to pierce the normative foundations of economic and social rights generally, and the International Covenant on Economic, Social and Cultural Rights particularly in the early days both before and after its adoption leading to economic and social rights’ lower status in the human rights family; Section 3 posits that cynicism has been relied upon as a shield to offer errant states a defence for not meeting their obligations under both international and national (constitutional) economic and social rights norms; and finally Section 4 argues that a certain amount of cynicism is inherent in the history of economic and social rights and how they advanced through the ages, but more optimistically that a light at the end of the tunnel exists because contemporary developments point to less rather than more cynicism in the area of economic and social rights in today’s world.

C. O. Lichuma (*) Georg-August-Universität Göttingen, Göttingen, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_12

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1 Setting the Stage: An Introduction to Cynicism in the Area of Economic and Social Rights Despite a promising start in the Universal Declaration of Human Rights, several ideological objections resulted in the late arrival of economic and social rights at the ball, thus earning these rights the moniker ‘Cinderella of the international human rights corpus’1 unfortunately honoured more ‘in the breach than the observance’.2 At the time of the adoption of the Universal Declaration of Human Rights in 1948,3 no division was made between civil and political rights, on the one hand, and economic and social rights, on the other. Unfortunately, however, within the International Bill of Human Rights, the content of the Universal Declaration of Human Rights was divided into two separate covenants, the International Covenant on Civil and Political Rights4 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights5 (ICESCR). This artificial division resulted in the creation of a hierarchy that, for a large part of the human rights movement’s life, unfairly privileged civil and political rights at the expense of economic and social rights. Addressing the World Conference on Human Rights in 1993, the Committee on Economic, Social and Cultural Rights rather sardonically pointed out: The shocking reality is that states and the international community as a whole continue to tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. In effect, despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights.6

To date, more than 70 years after the Universal Declaration of Human Rights’ adoption, myriad arguments are (still) levied against economic and social rights and their justiciability. Detractors posit that adjudication of economic and social rights is counter-majoritarian and that judges lack democratic legitimacy7 to enforce said rights. Scholars agree that judicial enforcement of economic and social rights may undermine the doctrine of separation of powers because courts are institutionally ill-suited and ill-equipped to deal with the kind of polycentric disputes implicated by enforcement of economic and social rights.8

1

Fredman (2008), p. 2. Bilchitz (2007), p. 2. 3 UN General Assembly, Universal Declaration of Human Rights, Resolution 217 A (III) (10 December 1948). 4 999 UNTS 171. 5 993 UNTS 3. 6 CESCR, Statement to the World Conference on Human Rights, 7 December 1992, para. 5. 7 Friedman (2001), p. 3. 8 Fuller (1978), p. 353. 2

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Despite ‘a degree of optimism generated in recent years’9 about the interdependence and indivisibility of all human rights,10 and by the constitutional entrenchment and subsequent adjudication of economic and social rights in various national jurisdictions,11 economic and social rights have not yet come of age. In fact, in recent times, criticisms of economic and social rights have even been extended to include their alleged inability to tackle material inequality,12 a position that I reject because economic and social rights do have both the tools and the desire to help fight material inequality.13 More specifically, Moyn questions the validity of economic and social rights where they provide a floor of protection but not a ceiling on inequality. For him, the selective attention of human rights politics towards a minimum provision of the ‘good things in life’ has resulted into the intensification of material hierarchy by focusing on sufficiency rather than equality. As a rejoinder, I however argue that although the contested minimum core concept of economic and social rights may lend credence to the notion that human rights have concerned themselves with sufficiency rather than equality, it is fallacious to conclude that the entire regime of human rights is compatible with material inequality. The combined use of the minimum core concept, the doctrine of progressive realisation and the proper implementation of tools such as fiscal policy and constitutional dialogue holds immense potential for the lessening of economic inequality. I hypothesise that while some concerns raised about economic and social rights may be valid, this chronic and sustained rejection of economic and social rights is sometimes a manifestation of the cynicism with which individual governments regard international law generally and economic and social rights specifically. What then is cynicism? For instance, Koskenniemi argues that one way to understand cynicism is to look at the actions of government lawyers who are professionally committed to always producing justifications for what their governments do. For him, the surest proof of this façade legitimation aspect of international law is the harnessing of a universal language in the service of particular (self-)interests.14 While there is obviously no agreed upon definition of the concept of cynicism in the area of international law, I herein posit that cynicism exists on a spectrum, wherein the degrees of cynicism exhibited by actors in international law may vary and thus produce varying effects. On one end of this cynicism spectrum there could be a simple lack of sincerity or genuineness on the part of states when they give reasons for their rejection of economic and social rights. On the other end, there could be a more negative, ridiculing mindset and self-serving mentality that results in harmful consequences. The fluidity in this cynicism spectrum means that in

9

O’Connell (2012) p. 5. UNGA, Vienna Declaration and Programme of Action, 12 July 1993. 11 Langford (2008). 12 Moyn (2018). 13 Lichuma (2019). 14 Koskenniemi (2017), pp. 59–60. 10

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certain instances a little cynicism may be tolerable, and not harmful while in other instances the cynicism could catalyse much more harmful results. Relying upon cynicism as a lens, I argue that there should be a general distrust of the motives that accompany state actions (or inactions as the case may be) within the context of failures to recognise and implement economic and social rights. There is more than meets the eye when states reject economic and social rights (whether formally or substantively). Cynicism exists where states reject economic and social rights for reasons that have nothing to do with real concerns about their implementation. I hypothesise that cynicism is used both as a sword and a shield in the area of economic and social rights to accomplish two distinct but interconnected purposes. As a sword, cynicism forms the foundation of the critiques deployed to object to recognition of economic and social rights as real human rights (in comparison to civil and political rights) and to deny them a seat at the table of international legal norms that ought to be legally binding. As a shield, cynicism is relied upon to allow the minimalist implementation of economic and social rights obligations to defend errant states against assertions (whether before national courts or regional and international treaty bodies) to the effect that they are failing to meet their obligations to fully (albeit progressively) realise economic and social rights. In both instances, when states hide behind self-interest to serve their particular interests and justify their actions and inactions cynicism is manifested. The reasons advanced by some states for failing to respect and implement economic and social rights are not always genuine, rather, they camouflage a range of ulterior motives ranging from states not wanting to be told how to make resource allocation decisions to only ratifying international treaties such as the ICESCR because of (political) pressure with no real intention of following through. In these instances, self-interest comes at the expense of full realisation of all economic and social rights, as stipulated by Article 2 (1) of the Covenant. It must be stated from the onset that the present analysis in no way aims to diminish or detract from the genuine concerns associated with the enforcement of economic and social rights at both the national and the international level. The author merely argues that not all instances of rejection of economic and social rights can be properly attributed to the nature of the rights and the difficulties inherent in their implementation. It is in these cases where there exists an arguably unfounded rejection that the rest of the chapter devotes itself to. Flowing from the above hypothesis, this chapter analyses cynicism in the area of economic and social rights with a twofold intention. First, to outline how states have relied upon cynical legal arguments against the implementation of economic and social rights at both the international and national level in order to relegate these rights to an inferior status in comparison to their civil and political rights counterparts with the consequence that violations of economic and social rights are not considered to be ‘that bad’. Second, to illustrate how even in situations where economic and social rights are recognised either through ratification of regional and international treaties or in national jurisdictions (sometimes through constitutional entrenchment of said rights) legal arguments founded on both international and domestic law norms are relied upon cynically to allow state parties to justify the circumvention of their legal obligations under the ICESCR. This sceptical gaze

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through which economic and social rights are often viewed (un)intentionally results in government failures nationally to provide for those members of their populace who are in most desperate need. The chapter is divided into three subsequent parts. Section 2 undertakes a historical analysis of the ideological, philosophical and legal arguments lobbied against economic and social rights in the incipient years of the ICESCR to illustrate that most of the common objections raised against the justiciability of economic and social rights were/are not insurmountable but rather were/are a manifestation of the cynicism that plagues certain areas of international law. In Section 3, the spotlight will be shined on how both national and international law norms have been used cynically by various governments to (attempt to) justify current failures to realise economic and social rights. For instance, the chronic reliance by several domestic constitutional settings such as Ireland on the ‘supremacy of the Constitution’ arguments to forestall the application of international economic and social rights norms. The section also highlights the cynicism inherent in the wording of the ICESCR itself and argues that international law (in the area of economic and social rights) itself is cynical and that this cynical wording of the Covenant has in turn perpetuated further cynicism in its implementation. Adopting a more optimistic outlook, Section 4 concludes the discussion by arguing that while a certain amount of cynicism is inherent in the history of economic and social rights and how they advanced through the ages, a silver lining exists because recent developments such as the May 2013 entry into force of the Optional Protocol to the ICESCR point to less rather than more cynicism in the area of economic and social rights in today’s world.

2 What Lies Beneath: A Cynical Gaze upon Objections to Recognition and Implementation of Economic and Social Rights in the Early Days of the ICESCR The midwifing of the Universal Declaration of Human Rights resulted in the twin birth of economic and social rights and civil and political rights with the adoption of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in December 1966. Ironically, the ICESCR came into force on 6 January 1976, a few months before the ICCPR, which only came into force on 3 March 1976. However, despite this head-start, economic and social rights had a tumultuous beginning with numerous objections levied against their recognition and implementation during the formative years of the ICESCR and even before. As Philip Alston points out, the debate over economic and social rights was for a long time dramatically stuck in the mire of what might be termed a name-calling phase in which opponents contented themselves

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with proclaiming that social rights were simply not susceptible to judicial review and implementation.15

I analyse these objections through the rubrics ‘ideological’ and ‘legalistic’. After the entry into force of the ICESCR, economic and social rights were for a long time chastised for not being ‘real human rights’.16 Such scepticism, coupled with the outrightly negative attitudes exhibited towards economic and social rights have been argued to devolve from cultural traditions.17 More specifically, it has been posited that one manifestation of the relativity inherent in cultural traditions is the assumption in some Western societies that human rights shall be construed as natural rights securing the freedom of the individual from the state.18 Consequentially, and based on this narrow conceptualisation of human rights, economic and social rights were viewed as merely aspirational goals to be realised over time rather than real rights in comparison to their civil and political rights counterparts. This ideological bias can be partly attributed to the intensification of the ideological controversy during the Cold War which pitted socialist countries against some Western societies with the former championing economic and social rights while the later overstated the priority given to civil and political rights instead.19 In particular, the USA, the Soviet Union and their respective allies differed on the importance of specific rights. The Western states such as the USA typically favoured two separate covenants, fearing that putting economic and social rights on the same level as civil and political rights would undermine individual rights. They also embraced the view that economic and social rights were non-justiciable and therefore so different from civil and political rights that they must be separated.20 Those with ‘a strong faith in full economic liberalism and a severely constrained role for the state in matters of welfare’ resisted economic and social rights.21 The Soviet Union and those aligned with it contended that economic and social rights were of equal or greater importance. This view emphasised collective rights and asserted that civil and political rights were ‘purely theoretical in character’ without economic and social rights.22 Communist and socialist countries emphasised that all rights must be equal because all rights derived from being citizens of the state.23 Other countries, such as the Latin American states, argued that because rights are derived from human nature and man’s reason and conscience, all such rights must be equal.24

15

Alston (2008), pp. ix–xii. Neier (2006). 17 Eide (2000), p. 110. 18 Id. 19 Id. 20 Arambulo (1999), p. 17. 21 Eide (1995), pp. 21–22. 22 Id. 23 Id. 24 Arambulo (1999), p. 17. 16

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Is there a right or wrong side in this ideological debate? The Committee on Economic, Social and Cultural Rights has always averred that the undertaking ‘to take steps . . . by all appropriate means including particularly the adoption of legislative measures’ neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected.25 The ICESCR is therefore neutral and can be implemented in a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy or any other system. I opine, however, that these differences between states and their ideological backgrounds impacted how the states in question approached economic and social rights and contributed to whether their acceptance or rejection was based on genuine concerns regarding their implementation or rather, more cynically, a mere taking of sides in the Cold War. Rejection of economic and social rights under these conditions, by countries such as the USA, therefore may have had more to do with Cold War tensions predicating the defence of a particular economic system that the state in question subscribed to, and less to do with the nature of the rights themselves. Economic and social rights have additionally (since their inception to date) been criticised from a legalistic point of view through the siren call that is the justiciability objection. Within this context, numerous assertions are made to the effect that economic and social rights are not suitable for adjudication by courts or by other similar institutions. Paul O’Connell argues that the ultimate concern with the protection of socio-economic rights is the fear that providing constitutional protection for such rights will result in undermining the separation of powers by transferring too much authority to the courts, at the expense of elected branches of government.26

This overarching argument is buttressed by sub-arguments to the effect that courts lack democratic legitimacy to enforce economic and social rights27 and that courts lack the institutional capacity to make policy decisions because matters of policy with resource implications are best left to the domain of elected branches of government. The main (legalistic) concern with economic and social rights adjudication is respect for the Separation of Powers Doctrine.28 The doctrine is interpreted as providing for a particular ideal distribution of functions between the judiciary and the elected branches of government (that is, the legislature and the executive). Judicial enforcement of economic and social rights is seen as running afoul of this separation of powers because when the courts implement economic and social rights, they inadvertently stray into the sphere of authority reserved for the legislature and 25 UNCESCR, General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, para. 1, of the Covenant), 14 December 1990. 26 O’Connell (2012), p. 2. 27 Michelman (2003). 28 Contiades and Fotiadou (2012).

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the executive. As the argument runs, economic and social rights are resource-intensive and have budgetary implications,29 which in turn requires the making of political choices, a task that should lie within the domain of the elected branches of government and not with the courts. The argument on democratic illegitimacy of courts is phrased in the following terms. When the judiciary sets aside the decisions of democratically elected branches of government on questions of allocation of resources, they are acting contrary to the will of the majority30 and the decisions made through a democratic process. This arguably tends over time to severely weaken the democratic process and to create a distrust of the legislature.31 Critics argue that it is inappropriate for a non-elected and non-removable branch of government to reject the conclusions as to constitutionality arrived at by the two elected and removable branches. The institutional competence concern, on the other hand, questions the ability of courts to properly deal with questions of policy and resource allocation, because judges lack the technical competence to make decisions where the disputes in question are polycentric. Fuller argues that these kinds of polycentric problems in the allocation of economic resources are more suitably resolved using parliamentary methods rather than adjudicative ones.32 Further, he posits that when courts attempt to deal with these polycentric disputes, the adjudicative solution is likely to fail.33 These arguments against economic and social rights have been relied upon even at the national level, by states, to justify governmental failures to realise economic and social rights. For example, in a widely criticised ruling,34 the Kenyan Court of Appeal reversed a High Court decision on the right to housing, stating that under the political question doctrine, a court has no jurisdiction to make orders relating to policy formulation. In another case,35 the Supreme Court of Ireland, in articulating its concerns with the implications of the Doctrine of Separation of Powers, stated that if judges were to become involved in . . . designing the details of policy in individual cases or in general and ranking some areas of policy in priority to others they would step beyond their appointed role.

All these objections to economic and social rights have one thing in common: they inadvertently or otherwise chip away at the normative foundation of economic and social rights thus rendering these rights more or less ineffectual in practice. As Young36 and others have demonstrated, most of these objections to the recognition and enforcement of economic and social rights are not incapable of being overcome. 29

International Commission of Jurists (2008). Friedman (2001). 31 Bickel (1962), p. 34. 32 Fuller (1978), p. 353. 33 Id. 34 Kenya Airports Authority v. Mitu-Bell Welfare Societies and Others, Court of Appeal of Kenya at Nairobi, Civil Appeal 218 of 2014. 35 Sinnot v. Minister for Education (2001) IESC 63 paras. 375–377. 36 Young (2019), p. 22. 30

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These democracy and separation-of-powers based objections to economic and social rights may at one point have seemed overwhelming and insurmountable, but the terms of the debate have changed significantly in recent years. Newer models of separation of powers have become more pertinent as legislatures around the world have become more associated with dysfunction rather than democracy. There is now more inter-branch dialogue and more models of participation.37 In essence therefore, most of these objections are not intractable. Instead, they are a reflection of hard stance cynical positions adopted by individual states and scholars to devalue the currency of economic and social rights and to reduce their worth in the human rights marketplace.

3 Preaching Water and Drinking Wine: The Cynical Use of International and National (Constitutional) Law Norms to Justify State Actions and Inactions in Implementation of Economic and Social Rights In the space of three decades, economic and social rights have emerged from the shadows and margins of human rights discourse and jurisprudence to claim an increasingly central place38 (at least in theory if not in practice). Internationally, the ICESCR has been ratified by 169 states.39 According to Rosevear et al., the effect on national constitutions has been dramatic. Nearly all new democracies, and several established ones, have included some form of economic and social rights in their constitutions.40 This has the effect of committing their governments, at least formally, to the realisation of minimum standards of social welfare.41 More than threequarters of the world’s constitutions now contain at least one formally justiciable economic and social right, only 17 do not incorporate at least one justiciable or aspirational economic and social right, and the majority of constitutions contain at least nine or more.42 In their 2014 article,43 Jung et al. empirically argued that four economic and social rights are now standard features of new constitutions—education, health, child protection and social security—and that five are still relatively rare—housing, food, water, development and land. They also noted significant regional differences with economic and social rights being far more common and

37

Id. Langford (2008), pp. 3–45. 39 UNTS 993. 40 See the Toronto Initiative for Economic and Social Rights (TIESR) Dataset containing quantitative information on the constitutional status of economic and social rights in 195 countries. 41 Rosevear et al. (2019), pp. 37–65. 42 Id. 43 Jung et al. (2014). 38

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justiciable in Latin America and the former communist states of Eastern Europe and Central Asia than they are in the rest of the world.44 Despite these positive developments however, the history of economic and social rights and their implementation tells another story altogether. This section makes two intertwined arguments. First, there is an inadvertent amount of cynicism in the wording of the ICESCR itself that can be traced back to the context surrounding its drafting history, and this cynicism inherent in the (treaty) law itself has contributed to cynicism in its implementation. Second, even when states claim to be adherents of international law, and to be committed to the implementation of economic and social rights, cynicism sometimes underlies their actions despite a rhetorical45 commitment to human rights resulting into the states in question relying on specific legally crafted arguments to justify their failures to realise economic and social rights in practice.

3.1

Reading Between the Lines: Cynicism in the Wording of the ICESCR Itself?

I opine that in addition to its actors, the regime of international law can also be seen as manifesting cynicism because international law, more than other areas of law is premised on state consent. Consensus—on what international law is, whether it is binding on a particular state through treaty law or customary law, for example—is the soft underbelly of international law. Without it, international law, as we know it, would crumble. Is international law impartial, or can it be said to manifest specific interests? Third World Approaches to International Law (TWAIL) and its scholars (TWAILers) have challenged the hegemony of international law.46 One such prominent TWAILer, Chimni, has gone even further and argues that power has played an essential role in the formation of customary international law and that as a result, customary international law safeguards the interests of advanced capitalist states47 and thus reflects the hegemony of specific western ideas and beliefs. International law in this sense, is, therefore, capable of manifesting the cynical self-interest of its actors and is not an unbiased and objective regime. In crafting international law rules, cynicism manifests itself in international law’s self-interested attempts to secure states’ compliance with its prescriptions. The underlying assumption is that the states will not observe the rules of international law because it is just and right to do so, instead, they will do so because they have been coerced into such observance using either a ‘stick or a carrot’. Thus, in the area of economic and social rights, the wording of the ICESCR deliberately and rather 44

Id. Hafner-Burton and Tsutsui (2005), pp. 1373–1411. 46 Rajagopal (2012), pp. 176–181. 47 Chimni (2018), pp. 1–46. 45

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cynically manifests this self-interest by setting the stage for states to agree to be bound by the Covenant by making it (appear to be) less demanding to justify non-fulfilment of the obligations under the Covenant. Cynicism, therefore, becomes a shield for recalcitrant states. Article 2(1) ICESCR is crucial because it outlines the nature of state obligations under the Covenant. It contains four key components that are subject to monitoring by the Committee on Economic, Social and Cultural Rights. The first duty of states in this regard is ‘to take steps’. These steps, according to the Committee, must be deliberate, concrete, and targeted.48 States are given leeway to determine which measures will be suitable for ensuring that economic and social rights are realised. These may be legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights.49 The second component of the obligation of states is that the state party in question must take these steps ‘with a view to achieving progressively the full realization of the rights recognized’.50 This means that states should move as expeditiously as possible to ensure that economic and social rights are realised within their respective jurisdictions. The third element is to exhaust all possibilities that the state has at its disposal ‘to the maximum of its available resources’,51 and the fourth component of the fundamental obligations set out in Article 2(1) ICESCR is to employ all appropriate means ‘individually and through international assistance and co-operation especially economic and technical’. The conduct of the state in question should be reasonably calculated to realise the enjoyment of a particular right.52 Given a choice between two human rights treaties, the first one with strictly worded obligations but few ratifications and the other with less onerous obligations but more state parties, which would be preferable? While caution on the part of states during the drafting process of a treaty is manifested by their unwillingness to make commitments that are too concrete, I posit that there is a fine line between caution and cynical self-interest in these instances. Alston and Quinn note53 that during the preparatory work preceding the ICESCR most states’ representatives indicated a preference for the phrase ‘to take steps’ rather than ‘to guarantee’. The former had the ‘virtue’ of avoiding a formal undertaking to guarantee the rights, a commitment that would have been too ‘onerous in the circumstances’. It was a more ‘guarded’ expression and more realistically reflected what could be expected of the states, and what could be expected to obtain the states’ consent to the Covenant. Proposals to use the terms ‘to ensure’ and ‘to pledge themselves’ were unacceptable to the majority of the members of the Commission on Human Rights.54 Only Poland

48

UNCESCR, General Comment No. 3, supra note 25. Limburg Principles (1987). 50 Id. 51 Id. 52 Maastricht Guidelines (1997). 53 Alston and Quinn (1987), pp. 156–229. 54 Id. 49

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consistently advocated the use of the more specific term ‘to guarantee’.55 The representative of the Ukrainian Soviet Socialist Republic even noted that states like the USA, and some others, rejected the definite obligations proposed by the Polish text because they were once again trying to draw a distinction between civil and political rights on the one hand and economic and social rights on the other.56 The term ‘take steps’ was, therefore, a compromise that made states more willing to sign on to the Covenant, but at what cost? This chapter argues that this gave states a shield behind which to hide their intended and/or actual failures to comply with the spirit (rather than the letter) of the Covenant. The outcome is cynicism both on the part of the law itself and on the part of the parties bound by the treaty. For the former, the self-interest was necessary to secure state consensus to the Covenant, while for the latter self-interest implies that states can get away with not doing enough, but still be able to argue that they have taken proper steps as required by the Covenant. Another bone of contention for the present chapter is the term progressive realisation. The Committee on Economic, Social and Cultural Rights has defined progressive realisation in its General Comment No. 3 as constituting a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights.57

The inclusion of the requirement of progressive realisation subject to the maximum of available resources in the ICESCR has been justified as a necessary flexibility device acknowledging the resource-intensive nature of these rights and the fact that they cannot be achieved overnight.58 While I am sympathetic to these arguments, I would also rather provocatively argue that this is a further manifestation of cynical self-interest in international law itself as it relates to economic and social rights. As mentioned earlier, consensus is the Achilles’ heel of international law, and international law is therefore interested in securing consensus at whatever cost. I posit that progressive realisation is the price that had to be paid to secure consensus for the Covenant and smooth over the disagreements simmering just below the surface.59 As argued by Hungary60 during the preparatory work on the Covenant, the use of the term progressive realisation has had the (perhaps unintended) effect of enabling the obligations of state parties to the Covenant to be postponed to an indefinite time in the near future. As further reiterated at the time by Mr. Azkoul, the Lebanese representative, I agree that

55

See its proposed amendment to that effect, UN Doc E/CN.4/L.73 (1952). Commission on Human Rights, 8th session: summary record of the 273rd meeting, UN Doc E/CN.4/SR.273 (14 May 1952). 57 UNCESCR, General Comment No. 3, supra note 25. 58 Id. 59 De Schutter (2013). 60 Alston and Quinn (1987), pp. 156–229. 56

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the deletion of ‘progressively’ was desirable as that expression added nothing and might be interpreted as discouraging immediate implementation even in cases where such implementation was possible, because a state would be able to say it was only bound to implement the rights in the covenant progressively.61

This is in contradistinction to Article 2 ICCPR which contains no similar provision calling for civil and political rights to be progressively realised. Both scholars and states invariably contrast the concept of progressive achievement with that of immediate implementation which is said to be required by Article 2 ICCPR.62 During the drafting of the latter article, it was generally agreed that the ‘notion of implementation at the earliest possible moment was implicit in article 2 as a whole’.63 The obligation to take steps, the progressive realisation caveat, and the maximum of available resources requirements have been (mis)used by states to shield them from allegations to the effect that they are not doing enough to realise economic and social rights. This has been done internationally when states submit their state reports to the Committee on Economic, Social and Cultural Rights as required by Article 16, and nationally when (some) courts are adjudicating upon economic and social rights. For example, Kenya has ratified the Covenant and since 2010 has a Constitution that explicitly entrenches economic and social rights in its Article 43. However, the situation on the ground remains dismal with right-holders failing to realise the promise of economic and social rights. In its reports to the Committee, however, the Kenyan government continually promises to fulfil its obligations under the Covenant progressively. In its combined second to fifth periodic report,64 the government repeatedly mentions the fact that economic and social rights are to be achieved progressively without, in my opinion, giving sufficient and concrete instances of precisely how this is being done. In its concluding observations, the Committee, however, voiced its concern that corruption in the Kenyan public sector is pervasive and that a large number of illicit cash flows and tax avoidance impedes the progressive realisation of economic and social rights.65 In another instance, when South Africa submitted its initial report on 25 April 2017, the government averred that it ‘seeks to realize rights both immediately and progressively and does so by planning for the implementation thereof’.66 Within the context of the right to housing, the government specifically averred that they, ‘must take reasonable 61

Id. Id. 63 Id. 64 UNCESCR, Consideration of Reports Submitted by State Parties under Articles 16 and 17 of the International Covenant on Economic and Social Rights: Combined Second to Sixth Report of State Parties Due in 2013-Kenya, UN Doc E/C.12/KEN/2-5 (26 February 2014). 65 UNCESCR, Concluding Observations on the Combined Second to Fifth Periodic Reports of Kenya, UN Doc E/C.12/KEN/CO/2-5 (6 April 2016), para. 17. 66 UNCESCR, Consideration of Reports Submitted by State Parties under Articles 16 and 17 of the International Covenant on Economic and Social Rights: Initial Reports of State Parties due in 2017South Africa, UN Doc E/C.12/ZAF/1 (7 June 2017), p. 17. 62

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legislative and other measures, within its available resources, to achieve the progressive realization of this right’.67 The Committee, however, responded that although states are required to make continuous efforts to realise rights such as the right to housing progressively, it remained concerned, ‘at the large number of people living in inadequate housing without access to basic services’.68 The High Court of Kenya has in several disappointing cases, mirrored this superficial commitment to economic and social rights while in actuality relying on progressive realisation to justify a failure on their part to give more strongly worded judgments that would have a higher likelihood of vindicating economic and social rights for the right-holders. For instance, in the Charo Case69 which concerned an application by about 270 households for an interim injunctive order, restraining the respondents from forcefully evicting them without the provision of alternative land or accommodation in contravention of the right to housing as is enshrined in Article 43(1)(b) of the Constitution of Kenya. The Court declined to espouse a progressive and purposive interpretation of the right to adequate housing, calling it an aspirational right that can only be realised progressively and failed to adopt a transformative concept of adjudication which reflected the paradigm shift advocated by the petitioners. One of the enduring paradoxes of the ICESCR is, therefore, the fact that progressive realisation is both a stumbling block to and a cornerstone of the architecture of economic and social rights implementation. While it is a necessary flexibility device recognising that economic and social rights are resource-intensive and that their realisation cannot be without considerable financial strain, the lack of clarity surrounding exactly what progressive realisation means, means that this progressive realisation requirement can (and has?) been mis(used) by states to justify their inactions in implementation of economic and social rights. In recognition of precisely these difficulties, the UN High Commissioner for Human Rights in 2007 issued a report aimed at ‘dispelling such misconceptions’.70 Finally, the maximum of available resources requirement is one of the essential requirements under the Covenant, where states are expected to implement economic and social rights subject to the maximum of resources at their disposal. This provision has however been used to justify low public expenditure on economic and social rights implementation in a legal way where states argue that they lack the resources to invest in economic and social rights (even as public funds are diverted through corruption in countries such as Kenya).71

67

Id., p. 38. UNCESCR, Concluding Observations on the Initial Report of South Africa, UN Doc E/C.12/ ZAF/CO/1 (29 Nov 2018), para. 58. 69 Charo wa Yaa v Jama Abdi Noor et al., High Court of Kenya at Mombasa Misc. Civil Application No. 8, 2011, (Charo case). 70 Economic and Social Council, Report of the United Nations High Commissioner for Human Rights, UN Doc E/2007/82 (25 June 2007), para. 2. 71 Lichuma (2018). 68

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Implicit in both these arguments is a surface adherence to the regime of economic and social rights, while in practice, self-interest means that the states in question remain unwilling to meet their obligations and mask this unwillingness under the guise of legally crafted and (at least on paper) perfectly acceptable exceptions.

3.2

Reclaiming the National Back from the International: Constitutional Supremacy at the Cost of Economic and Social Rights?

Two leading systems exist today for protecting the fundamental rights of individuals: constitutional law and human rights law. Both systems assert an ultimate authority to evaluate whether governmental practices comply with fundamental rights, and each system has been argued to sit in potential judgment over the other.72 National constitutions will often stipulate a legal hierarchy. In some cases, a supremacy clause asserts the supremacy of the constitution in question and declares that any law that is inconsistent with the constitution will be invalid to the extent of the inconsistency. I opine that in certain instances, a cynical reliance may be made on these kinds of supremacy clauses to justify failures to comply with obligations under international human rights law. For instance, in countries such as Ireland, the rejection of economic and social rights has been more overt. In 2001, the Irish Supreme Court delivered two of the most significant recent judgments in Irish constitutional jurisprudence: Sinnot v. Minister of Education and TD v. Minister of Education.73 While comprised of different factual backgrounds, the two cases were fundamentally about the extent to which courts would enforce rights against the elected branches of government, where such enforcement imposed a positive obligation on the state to provide certain services. In over-turning the respective High Court orders in both cases, the Irish Supreme Court sent out a clear message: the Irish Constitution was a charter of negative liberties, and socio-economic rights, although laudable aspirations, were a matter for the elected branches of government rather than the courts.74 Within the African context, while the Committee on Economic, Social and Cultural Rights has made several valuable recommendations on the implementation of economic and social rights in several African states, the influence of these recommendations in Africa generally remains limited since most of them remain unimplemented or unduly delayed. This has been partly attributed to a lack of political will to comply with the recommendations of international (quasi-)judicial bodies which do not enjoy constitutional supremacy.75 This is worsened by the lack 72

Neuman (2003), pp. 1863–1900. O’Connell (2012), pp. 138–166. 74 Id. 75 Ssenyonjo (2017). 73

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of effective follow-up with the concluding observations and recommendations of the Committee concerning previous state reports.76 The position remains just as dismal within the context of decisions rendered by the African Commission on Human and Peoples’ Rights. For instance, years later, the seminal Endorois77 decision against the Kenyan government is yet to be fully implemented.78

4 When More Means Less: The Increased Justiciability of Economic and Social Rights as a Sign of Less Cynicism As Kathryn Young argues in her latest book, the future of economic and social rights is unlikely to resemble its past.79 Despite their initial neglect in the human rights movement, and avoidance by (some) courts, economic and social rights are now increasingly at the top of the human rights agenda. Even more optimistically, Young posits that a rights revolution, a juridical revolution appears to be taking place.80 Despite the modest and somewhat gloomy beginnings that marked the inception of economic and social rights (as elucidated upon above) there is a now unprecedented increase in recognition of these rights domestically and internationally. Economic and social rights are now expressly guaranteed in one form or another in most of the world’s constitutions and most of the leading human rights treaties. They are also increasingly being given a justiciable status. The future cannot be predicted, but neither can it be denied.81 I opine that this is a case of when ‘more means less’. More recognition (even if only in theory but not yet entirely in practice) of economic and social rights could be reflective of less cynicism in the area of economic and social rights. It is impossible (or at least extremely difficult) for the economic and social rights naysayers to remain unaffected by the winds of change that are blowing through the discourse. Now more than ever, there is an increased push by economic and social rights loyalists to find novel ways to make economic and social rights tangible for rightholders and to transform judgments in economic and social rights cases into meaningful victories for those in most desperate need. This has happened both at the national and international levels. The use of ‘structural cases’82 or structural

76

Id. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, African Commission on Human and Peoples’ Rights, 4 February 2010. 78 UNCESCR, Concluding Observations on the Combined Second to Fifth Periodic Reports of Kenya, supra note 65, para. 15. 79 Young (2019), p. 1. 80 Id. 81 Id. 82 Rodríguez-Garavito (2011). 77

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injunctions where an active judiciary ‘issues enforcement orders and courts instruct various government agencies to take coordinated actions to protect the entire affected population and not just the specific complainants in the case’ are now very common in the enforcement of economic and social rights.83 Scholars agree that the structural injunction is a novel remedy capable of ensuring the effective implementation of economic and social rights.84 The Constitutional Court of Colombia has been lauded for successfully relying upon the structural injunction in its T-02585 judgment of 2004. In this decision, the Constitutional Court of Colombia declared that the humanitarian emergency caused by forced displacement constituted an ‘unconstitutional state of affairs’ that is a massive human rights violation associated with systemic failures in state action.86 As the complaints that reached the court from all corners of the country showed, there was no severe and coordinated state policy for offering emergency aid to internally displaced persons,87 nor was there reliable information on the number of internally displaced persons or the conditions they were facing. Moreover, the budget allocated to the issue was insufficient. To eradicate the root causes behind this state of affairs, the court ordered a series of structural measures that allowed it to exercise supervisory powers for years after the case was heard in order to assess the implementation of the judgment.88 In the international sphere, a turn in the tides of scepticism recently occurred. On 10 December 2008, the UN General Assembly adopted the Optional Protocol to the ICESCR.89 This new treaty mechanism permits individuals as well as groups of individuals to make complaints to the Committee on Economic, Social and Cultural Rights so long as they have exhausted domestic remedies and believe a member state has failed to observe its obligations under the Covenant. It also provides for an optional inquiries procedure in cases of grave and systematic violations of economic and social rights. In 2009, the Protocol was opened for signature and ratification and was immediately signed by 30 states. The Protocol came into force on 5 May 2013 and the number of ratifications is steadily growing.90 This is potentially illustrative of less cynicism about the status and equal worth of economic and social rights as compared to their civil and political rights counterpart, because the ICCPR has had

83 This has happened in Colombia, India, South Africa and the USA (to mention just a few examples). See Rodríguez-Garavito (2011); Muralidhar (2008); Hirsch (2007); and Sabel and Simon (2004). 84 Mbazira (2009). 85 Constitutional Court of Colombia, T-025/04 (slip op. at 1), Judgment of 22 January 2004. 86 Id., paras. 80–81. 87 Id., paras. 67–68. 88 Rodríguez-Garavito (2011). 89 UN General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc A/RES/63/117 (10 Dec 2008). 90 Langford et al. (2016).

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an optional protocol allowing for individual communications from the very beginning.91 At the national front, now more than ever, new constitutions and constitutional amendments increasingly adopt justiciable versions of economic and social rights.92 Certain national courts are alert to new methods of scrutiny, and new remedial possibilities are being raised (sometimes successfully) in complaints. Some courts have gone even further to craft novel and innovative remedies that will ensure that economic and social rights become more than parchment rights that are capable of tangible enjoyment by right-holders.93 Remedies in economic and social rights cases are moving from being individual to being more deliberative and inclusive of a vast number of stakeholders. Evidence of new juridical trends from constitutional courts and supreme courts from around the world now abounds. Now more than ever, courts in the area of economic and social rights are scrutinising the participatory processes of decision making, the rationality of budgetary decision making, the attention given to the needs of the most vulnerable and whether the elected branches have considered means less restrictive of economic and social rights.94 Moreover, new forms and mechanisms of accountability now assigned to human rights institutions, specialised commissioners or legislative committees provide oversight alongside to and apart from courts.95 While concerns have long been harboured about the tokenistic nature of economic and social rights and the cynical tendencies of states to obscure infringement of rights by hiding behind sham constitutional texts and insincere treaty ratifications, this chapter cautions against throwing the baby out with the bathwater. A certain amount of cynicism will always be a part of the economic and social rights story, given how these rights were birthed. However, as economic and social rights continue to be more accepted at the national and international level, and as novel tools are relied upon to enhance their implementation, it is apparent that sometimes more rights mean more victories for right-holders and in turn that despite the selfinterest that fuels individual states there is less cynicism about these rights. We must conquer our own cynicism. The true promise of economic and social rights lies yet unfulfilled. Nevertheless, we are lucky enough, at the very least, to live in a time when there is more rather than less economic and social rights and (hopefully) less rather than more cynicism.

91

999 UNTS 171. Young (2019). 93 Rodríguez-Garavito (2011). 94 Young (2019). 95 Id. 92

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References Alston, P. (2008). Foreword. In M. Langford (Ed.), Social rights jurisprudence: Emerging trends in international and comparative law. Cambridge, England: CUP. Alston, P., & Quinn, G. (1987). The nature and scope of state parties’ obligations under the International Covenant on Economic, Social and Cultural Rights. Human Rights Quarterly, 9 (2), 156–229. Arambulo, K. (1999). Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and procedural aspects (2nd ed.). Cambridge, England: Intersentia. Bickel, A. (1962). The least dangerous branch: The Supreme Court at the bar of politics. Indianapolis, IN: Bobbs-Merrill. Bilchitz, D. (2007). Poverty and fundamental rights: The justification and enforcement of socioeconomic rights. Oxford, England: OUP. Chimni, B. S. (2018). Customary international law: A third world perspective. American Journal of International Law, 112(1), 1–46. Contiades, X., & Fotiadou, A. (2012). Social rights in the age of proportionality: Global economic crisis and constitutional litigation. International Journal of Constitutional Law, 10(3), 660–686. De Schutter, O. (2013). Economic, social and cultural rights as human rights: An introduction. CRIDHO Working Paper 3, 1–45. Eide, A. (2000). Economic and social rights: Origin, content and state obligations. In J. Symonides (Ed.), Human rights: Concepts and standards. UNESCO Publishing, Ashgate. Eide, A., Krause, C., & Rosas, A. (1995). Economic, social and cultural rights as human rights in economic, social and cultural rights: A textbook. Leiden, The Netherlands: Martinus Nijhoff. Fredman, S. (2008). Human rights transformed: Positive rights and positive duties. Oxford, England: OUP. Friedman, B. (2001). The counter-majoritarian problem and the pathology of constitutional scholarship. North Western Law Review, 95(3), 933–964. Fuller, L. (1978–1979). The forms and limits of adjudication. Harvard Law Review, 92(2), 353–409. Hafner-Burton, E., & Tsutsui, K. (2005). Human rights in a globalizing world: The paradox of empty promises. American Journal of Sociology, 110(5), 1373–1411. Hirsch, D. E. (2007). A defense of structural injunctive remedies in South African Law. Oregon Review of International Law, 9(1), 1–66. International Commission of Jurists. (2008). Courts and the legal enforcement of economic, social and cultural rights: Comparative experiences of justiciability. Human Rights and Rule of Law Series 2. Jung, C., Hirschl, R., & Rosevear, E. (2014). Economic and social rights in national constitutions. American Journal of Comparative Law, 62(4), 1043–1093. Koskenniemi, M. (2017). Between commitment and cynicism. In J. d’Aspremont, G. Tarcisio, A. Nollkaemper, & W. G. Werner (Eds.), International law as a profession. Cambridge, England: CUP. Langford, M. (2008). The justiciability of social rights: From practice to theory. In M. Langford (Ed.), Social rights jurisprudence: Emerging trends in international and comparative law. Cambridge, England: CUP. Langford, M., Porter, B., Brown, R., & Rossi, J. (2016). Introduction. In M. Langford, B. Porter, R. Brown, & J. Rossi (Eds.), The optional protocol to the International Covenant on Economic, Social and Cultural Rights: A commentary (pp. 1–15). Pretoria, South Africa: Pretoria University Law Press. Lichuma, C. (2018). Economic wrongs and social rights: Analyzing the impact of systemic corruption on realization of economic and social rights in Kenya and the potential redress offered by the optional protocol to the International Covenant on Economic, Social Rights and Cultural Rights. The Transnational Human Rights Review, 5, 63–93.

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Lichuma, C. (2019). Now is not yet the winter of our discontent: The unfulfilled promise of economic and social rights in the fight against economic inequality. Bernard and Audre Rapoport Centre for Human Rights and Justice Working Paper Series 5/2019. Mbazira, C. (2009). Litigating socio-economic rights in South Africa: A choice between corrective and distributive justice. Pretoria: Pretoria University Law Press (PULP). Michelman, F. (2003). The constitution, social rights, and liberal political justification. International Journal of Constitutional Law, 1(1), 13–34. Moyn, S. (2018). Not enough: Human rights in an unequal world. Harvard, MA: Harvard University Press. Muralidhar, S. (2008). India: The expectations and challenges of judicial enforcement of social rights. In M. Langford (Ed.), Social rights jurisprudence: Emerging trends in international and comparative law. Cambridge, England: CUP. Neier, A. (2006). Social and economic rights: A critique. Human Rights Brief, 13(2), 1–3. Neuman, G. (2003). Human rights and constitutional rights: Harmony and dissonance. Stanford Law Review, 55(5), 1863–1900. O’Connell, P. (2012). Vindicating socio-economic rights: International standards and comparative experiences. New York: Routledge. Rajagopal, B. (2012). International law and its discontents: Rethinking the global south. Proceedings of the Annual Meeting (American Society of International Law), 106, 176–181. Rodríguez-Garavito, C. (2011). Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America. Texas Law Review, 89(7), 1669–1698. Rosevear, E., Hirschl, R., & Jung, C. (2019). Justiciable and aspirational economic and social rights in national constitutions. In K. Young (Ed.), The future of economic and social rights (pp. 37–65). Cambridge, England: CUP. Sabel, C. F., & Simon, W. H. (2004). Destabilization rights: How public law litigation succeeds. Harvard Law Review, 117(4), 1016–1101. Ssenyonjo, M. (2017). The influence of the International Covenant on Economic, Social and Cultural Rights in Africa. Netherlands International Law Review, 64(2), 259–289. Young, K. (2019). Introduction. In K. Young (Ed.), The future of economic and social rights. Cambridge, England: CUP.

Caroline Omari Lichuma is a PhD student at the Chair of Public and International Law, GeorgAugust-Universität Göttingen, Germany.

In International Law We Shall Trust: (Even in) The Case of Economic and Social Rights Dominik Steiger

Abstract This comment is a reply to Caroline Lichuma’s chapter ‘In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism’. In his reply, the author disagrees with Lichuma’s understanding of cynicism as insincerity. Instead, cynicism must be understood as a certain negative, ridiculing and even destructive mindset based on self-interest. Further, for states to argue that the normative value of economic and social rights does not reach the level of civil and political rights is not in itself insincere, as the wording and the drafting history of the International Covenant on Economic, Social and Cultural Rights are a valid—but also contested—basis for such a limited understanding. However, while states may have wanted to limit their commitment with regard to economic and social rights, they nevertheless have commited themselves. Finally, the author argues that insights stemming from political science and economics help in dealing with the problems standing in the way of the full realisation of economic and social rights, which underlie Caroline Lichuma’s definition and critique of cynicism.

1 Introduction Caroline Lichuma’s chapter on economic and social rights is a rich and complex chapter. It first observes that cynicism, which Caroline Lichuma basically understands as a form of insincerity, is used by governments as a ‘sword and a shield’ and thus as a means to attack the legal nature of economic and social rights and to defend themselves against their full implementation. Second, it claims that international law, especially the law of economic and social rights, is in itself cynical.

The author would like to thank Linus Mührel for his valuable help. D. Steiger (*) Technische Universität Dresden, Dresden, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_13

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My critique focuses on three points: first, I do not agree that cynicism is to be understood as insincerity (Sect. 2). Second, I will explain why I disagree that states are necessarily insincere when they interpret economic and social rights in a narrow way or deny the justiciability of economic and social rights. Likewise, international law is not insincere (Sect. 3). My criticism shall be a constructive one, since I—just as Caroline Lichuma—favour a progressive interpretation of economic and social rights. Thus, I will offer two legal avenues which could help in dealing with cynicism and with its underlying causes in the field of economic and social rights and will show that in international law we shall trust (even) in the case of economic and social rights (Sect. 4).

2 Cynicism as a Negative, Ridiculing and Destructive Mindset Caroline Lichuma posits that cynicism exists on a spectrum, wherein the degrees of cynicism exhibited by actors in international law may vary . . . On one end of this cynicism spectrum there could be a simple lack of sincerity or genuineness on the part of states when they give reasons for their rejection of economic and social rights. On the other end, there could be a more negative, ridiculing mindset and self-serving mentality that results in harmful consequences.

However, she does not follow through with this differentiation. Instead, in her text she primarily resorts to an understanding of cynicism as insincerity: ‘[c]ynicism exists where states reject economic and social rights for reasons that have nothing to do with real concerns about their implementation’; states ‘are not always genuine’; and states ‘camouflage’ their real intentions, which is not to commit to economic and social rights because of the economic and political costs involved. Indeed, different dictionaries offer the synonym ‘insincere’ for ‘cynical’.1 But is that what cynicism really stands for? I disagree with this assessment. Instead, cynicism must be understood as a certain negative, ridiculing and even destructive mindset and mentality which informs actions and thus voids them of their core meaning. The reasons behind this mindset will most often be self-interest.2 While the cynical state is in principle interested in the issue at hand (or else the state would not engage with this issue), the state is not interested in a positive manner. Instead, it behaves in a ‘tactical manner’.3 In contrast to the notion of cynicism as insincerity, in the understanding of the present author, states have committed to economic and social rights in principle, even if only in a

1

See e.g. https://dictionary.cambridge.org/de/worterbuch/englisch/cynical. Accessed 29 April 2020. 2 See Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume, referring to Sloterdijk (1983), p. 222. 3 See Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume.

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half-hearted way. For questions of compliance with international law, it is of relevance whether a state is dishonest or self-interested. Contrary to a dishonest state, a self-interested one which behaves tactically is still within the reach of the law and its arguments.4 The difference between these two understandings is therefore quite decisive.

3 Limited Commitment: Words and Separation of Powers Matter Caroline Lichuma argues that states rely on cynicism in the sense of insincerity in their dealings with economic and social rights in two ways. First, by piercing the normative foundations of economic and social rights (the ‘sword’) and, second, by arguing in favour of a minimalist interpretation of their obligations under economic and social rights norms (the ‘shield’). Furthermore, she argues that economic and social rights law is cynical. I am not convinced by either claim. Why? For states to argue that the normative value of economic and social norms does not reach that of its civil and political counterparts is not necessarily insincere—and not necessarily tactical either. Instead, the wording and the drafting history of the International Covenant on Economic, Social and Cultural Rights5 (ICESCR) seem to be a valid— but also contested—basis for such a limited understanding. This is true for the substantive obligations (Sect. 3.1) as well as for the justiciability of economic and social rights (Sect. 3.2) Finally, international law—more concretly, economic and social rights themselves—are not cynical (Sect. 3.3).

3.1

The Obligations of States and the Wording of the International Covenant on Economic, Social and Cultural Rights

Caroline Lichuma has rightly pointed out that the wording of the ICESCR differs from that of the International Covenant on Civil and Political Rights6 (ICCPR) and that their respective Articles 2 are framed differently. Article 2(1) ICCPR clearly stipulates that a state has ‘to respect and to ensure’ the rights of the Covenant, such as freedom of expression. This is formulated differently than in Article 2(1) ICESCR, which requires a state

4

See Goldsmith and Posner (2005). 993 UNTS 3. 6 999 UNTS 171. 5

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to take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

This formulation is vaguer than the one in Article 2(1) ICCPR, which consequently gives states more leeway in matters of economic and social rights. In addition, the specific economic and social rights are also formulated in a vaguer manner than their civil and political counterparts and allow for the states to have more policy space. For example, Article 11(1) ICESCR provides that states parties ‘recognize the right of everyone to an adequate standard of living’. Similarly, in Article 12(1) ICESCR states ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. In contrast, Article 9 (1) ICCPR states: ‘[e]veryone has the right to liberty and security of person’. This difference between the two Covenants has become a ‘cliché’, i.e. common knowledge.7 Thus, states are not necessarily being insincere or tactical if they refer to the limited wording of the ICESCR. The example of South Africa, to which Caroline Lichuma refers, is a case in point. The South African government has made great strides in housing since 1994, the year in which Apartheid finally ended and Nelson Mandela became president. While progress has been too slow and the government has failed to deliver everything it has promised, it nevertheless delivered more than four million houses and housing opportunities.8 In its answers to the Committee on Social and Economic Rights, which, inter alia, criticised the large number of people living in inadequate housing, the growing number of informal settlements in urban areas due to rapid urbanisation, and the decrease in the number of social housing units provided by the South African government,9 the South African government relies on its duty to provide ‘reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right’.10 This is not necessarily a sign of insincerity but rather one of inability.11

7

De Schutter (2013), p. 4. According to the South African Department of Human Settlement records, 4.3 million houses and housing opportunities have been delivered since 1994, cf. Human Rights Commission South Africa, The Rights to Adequate Housing: Factsheet, p. 6. In its own 2015 report, the Human Rights Commission South Africa estimates that South Africa has made considerable gains in the delivery of state-subsidised housing by providing approximately 3.7 million housing opportunities since 1994, see South African Human Rights Commission Investigative Hearing Report (2015), p. 9. 9 UNCESCR, Concluding observations on the initial report of South Africa, UN Doc E/C.12/ZAF/ CO/1 (29 November 2018), para. 58. 10 UNCESCR, Consideration of reports submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights: South Africa, UN Doc E/C.12/ ZAF/1 (7 June 20017), para. 97. See also: UNCESCR, List of issues in relation to the initial report of South Africa. Replies of South Africa to the list of issues, UN Doc E/C.12/ZAF/Q/1/Add.1 (21 Sep 2018), para. 23.1. 11 Cf. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, para. 13: ‘In determining the which actions or omissions amount to a violation of an economic, social or cultural right, it is important to distinguish the inability from the unwillingness of a State to comply with its treaty obligations.’ 8

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To close, while it may be deplorable that economic and social rights are more openly framed than civil and political rights, it is not as such insincere for states to rely on their wording. On the contrary, it is in line with the basic rule of interpretation in international law, the ordinary meaning rule (Article 31(1) Vienna Convention on the Law of Treaties (VCLT)12).

3.2

Justiciability of Economic and Social Rights and the Separation of Powers Doctrine

Another claim based on the wording of the Covenant is that the rights enshrined in the Covenant are not justiciable.13 This is what Caroline Lichuma calls the ‘sword’ with which states object ‘to the recognition and enforcement of economic and social rights’ as justiciable rights. While I do not agree with these objections (see Sect. 4 below), they are valid arguments. Thus, for states to rely on them does not necessarily lead to the conclusion that they are being insincere or tactical—they might just follow a different interpretation of the law. Initially, there was discussion as to whether economic and social rights only reflect a legally irrelevant ‘set of aspirations’ or a ‘gentleman’s agreement’.14 However, this view is no longer tenable. Economic and social rights are objectively binding state obligations.15 By now, the controversy within legal scholarship has shifted primarily to the question of whether economic and social rights constitute subjective rights, and how intensive judicial scrutiny should be.16 At the basis of this controversy lies the counter-majoritarian difficulty.17 From the perspective of democratic theory, it is problematic if courts, which are only indirectly and weakly democratically legitimised, declare decisions of the democratically legitimated legislator to be illegal or even annul them.18 Such a judgment is even more problematic if it shapes social policy and has quasi-legislative effects. This seems to be especially true in the case of economic and social rights: the (distribution) issues arising from economic and social rights are ultimately political

12

1155 UNTS 331. See comprehensively Nolan et al. (2007). 14 Cf. Simma and Bennigsen (1990), p. 1489, referring to Hilf (1988), p. 886. See also De Schutter (2013), pp. 5 and 9 et seq. with further references. 15 UNCESCR, General Comment No. 3: The nature of States parties’ obligations (Art. 2, para. 1, of the Covenant), UN Doc E/1991/23 (14 December 1990), para. 1; De Schutter (2013), pp. 5–7; Trilsch (2011), pp. 45–47. 16 For a detailed discussion, see Trilsch (2011), pp. 47 et seq. 17 Bickel (1962), p. 235; O’Connell (2012), p. 2; rather general Friedman (2001); Steiger (2016), pp. 45–46. 18 See e.g. Möllers (2013), pp. 126 et seqq.; Steiger (2016), pp. 45–46. 13

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questions.19 As Caroline Lichuma writes, they are indeed resource-intensive, budget-relevant20 and, moreover, polycentric decisions.21 Within a separation of powers doctrine it is certainly not untenable to hold the view that such decisions should primarily be taken by the democratically legitimised parliament: While, on the one hand, the public authority exercised by the legislature is, inter alia, characterised by its temporal orientation, which is prospective22 and the scope of its decisions, which potentially affects everybody;23 the public authority exercised by the judiciary, on the other hand, is retrospective and principally affects one person.24 Thus, the legislative proceeding is mainly a democratic one and allows for collective selfdetermination,25 while judicial proceedings26 mainly protect the rule of law and individual self-determination.27 Even if one agrees that economic and social rights are subjective rights, difficult follow-up questions emerge. For example, what is the exact content and scope of such a subjective right? Does it only encompass a subjective right to the minimum core obligations, which have been developed by the Committee28 and do not have an explicit textual basis in the ICESCR, thus possibly giving rise to sincere objections by states? Or does the subjective right also encompass a right to have economic and social rights progressively realised? Such a right would necessarily be more far-reaching as it transcends the concrete individual sphere and impacts the abstract-general sphere which, in principle, is accorded to the legislator.29 Another decisive yet unanswered question is about the applicable control standard: How far may the judicial review of the violation go in detail? Here, too, uncertainties remain. While Article 8 of the Optional Protocol to the ICESCR,30 which has been ratified by 24 states, allows for individual communications, its paragraph 4 asks the Committee

19

Fuller (1978), p. 553; Michelman (2003). International Commission of Jurists (2008). 21 Fuller (1978), p. 553. 22 Möllers (2013), p. 84; Steiger (2016), p. 12. See also German Federal Constitutional Court, 1 BvL 5/08 (17 December 2013), para. 54, reprinted in Neue Zeitschrift für Verwaltungsrecht 33 (9), 577–588 (explaining that the legislature’s responsibility is the present, not the past); Strauss (1984), p. 798 (noting the legislature’s ‘future effect’). 23 See Möllers (2013), p. 84; Steiger (2016), p. 12. 24 See Möllers (2013), pp. 80, 89; Strauss (1984), p. 798; Steiger (2016), p. 12. 25 See Madison (1788); Steiger (2016), p. 12. 26 Of course, individual self-determination is primarily based on a decision and on the will of a single person. But from a legal point of view, individual self-determination needs legal rights and mechanisms to protect individual self-determination. See Möllers (2013), p. 68; Steiger (2016), p. 12. 27 See Möllers (2013), p. 95; Steiger (2016), p. 12. 28 UNCESCR, General Comment No. 3, supra note 15; see also: De Schutter (2013), p. 17 referring to Young (2012). 29 Möllers (2013), pp. 126 et seqq.; Steiger (2016), pp. 45–46. 30 UN General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc A/RES/63/117 (10 December 2008). 20

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to consider the reasonableness of the steps taken by the state party and emphasises that states parties ‘may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant’.31 Even if this standard has been the subject of judicial clarification, it is rather vague as compared to the standard of the Optional Protocol to the ICCPR.32 Here, the Human Rights Committee simply must decide whether a violation has taken place. Of course, states might always be insincere. However, from these uncertainties in interpretation it follows that states must not necessarily be considered insincere or self-interested if they reject a progressive reading of economic and social rights— even if there are more compelling arguments in favour of a broader commitment by states.33

3.3

A Cynical Treaty? Limited Commitment but Commitment Nevertheless

If the wording makes it so difficult to exactly pinpoint the extent of the states’ obligations maybe it is not the states or their arguments that are cynical but international law itself? Here, the point of reference seems to change. This is a second reading that Caroline Lichuma offers us—and it is in line with the question our conveners are asking. If cynical indeed equals ‘insincere’ then ‘cynical international law’ does not truly aim at ensuring social and economic rights. The Covenant is then some kind of window dressing aimed at lulling the world into believing that economic and social rights matter when this is not the case. Since international law is consensus based, the alleged cynicism of the text would need to be traced back to the states. Caroline Lichuma consequently claims that ‘consensus is the Achilles’ heel of international law’. I, again, disagree. Although the ICESCR’s wording is different from that of the ICCPR, the ICESCR does not allow its rights to be understood as optional while allowing for a more differentiated approach than the ICCPR. Even the ICCPR does not understand its rights to be absolute—except the prohibition of torture34—but foresees numerous limitations. This is not cynical but necessary as human rights need to be balanced with the human rights of others and the common good. Furthermore, the separation of powers doctrine shows that good reasons exist for allowing states—and their legislatures—more policy space in matters of resource-

31 For a discussion of the standard of reasonableness, see Porter (2016); Griffey (2011). See also below. 32 999 UNTS 171. 33 See Caroline Lichuma, ‘In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism’, in this Volume, Sect. 3.1. See also Sect. 4.1 below. 34 See Steiger (2013), pp. 82, 242–244.

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intensive, budget-relevant, and polycentric decision-making.35 Finally, such an understanding disavows the ICESCR and the work of the Committee and is as such counter-productive in furthering economic and social rights. Furthermore, consensus is still the foundation on which international law rests. Of course, states violate international law even if they have consented to it36 but without consensus there would be no international law.37 The sources of international law, at least the ones named in Article 38 ICJ Statute, are all based on consensus. The ‘constitutional moments’ of international law, such as the Peace of Westphalia in 1648, the Charter of the United Nations in 1945,38 the International Covenants in 1966 (together with the Universal Declaration of Human Rights of 1948), or the founding of the World Trade Organisation in 199439 are all prime examples. They have taken place when nearly all states were convinced that they had to reach a new consensus. When Caroline Lichuma writes about the compromise to include the words ‘to take steps’ in the ICESCR she asks: ‘at what cost’ was that achieved? But: one treaty with many relevant treaty states is better than no treaty. The Treaty on the Protection of Migrant Workers40 is a case in point: the Global North and the Global South failed to reach a consensus and the treaty, albeit in force, does not bind the states that mainly receive migrants.41 While consensus is no guarantee for compliance with a norm, without consensus, there is arguably no legal norm—and certainly no ICESCR—and chances of compliance are therefore much smaller.42 Sometimes,

35

See also Liebenberg (2020). For the problem of compliance see e.g. Raustiala and Slaughter (2002); Guzman (2002); Goodman and Jinks (2013), pp. 135–165. But see also Kingsbury (1997) and Chayes and Chayes (1993) for a discussion of the difficulty to measure compliance. 37 But consider in this respect the many attempts to replace the concept of state consensus as the foundation of international law. Benedict Kingsbury, e.g. proposes the more inclusive concept of ‘publicness’ as a criterion for formally binding legal rules. He defines publicness as ‘the claim made for law that it has been wrought by the whole society, by the public, and the connected claim that law addresses matters of concern to the society as such’, Kingsbury (2009), p. 31. A different approach is followed by Global Law, arguing that global law ‘emerges from various globalization processes in multiple sectors of civil society independently of the laws of the nation-states’, Teubner (1997), p. 12. See also Schultz (2014). For a detailed discussion of the different approaches and their (dis)advantages, see Ellis (2012). 38 1 UNTS XVI. 39 1867 UNTS 154. 40 2220 UNTS 3. 41 The countries of the EU, the USA, Canada, Australia, New Zealand, Japan, and the BRICS have not signed or ratified to date the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which makes the Convention ineffective, cf. the ratification status. 42 But note in this context the many voices that highlight the advantages of soft law, by trying to demonstrate that soft law is complied with as much as hard law, e.g. Chinkin (1989); Pauwelyn et al. (2014); Sassòli (2019), pp. 56–67 (on the role of soft law and other legally non-binding instruments in international humanitarian law). For a detailed discussion of soft law and its effects on state actions, see Ellis (2012), pp. 319–326. For a rejection of the concept of soft law, see Klabbers (1996). 36

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to use the words of Caroline Lichuma in a different context, less would have been more. Thus, when states understand their commitment as limited, they may not necessarily be insincere, and their claim may have some legal merit.

4 How to Fight Cynicism? Two Ways Out So how to fight cynicism as well as the phenomena Caroline Lichuma rightly identifies as the decisive (normative) problems of economic and social rights, i.e. the denial of their justiciability and the broadness of their wording? While the wording and the drafting history of the ICESCR allows for such a narrow understanding of state duties, the Vienna Convention on the Law of Treaties’ interpretative toolbox has more to offer. I posit a twofold answer: first, since insincerity, as well as a negative, ridiculing and destructive mindset based on self-interest, are subjective, the legal principle of good faith (which is concerned with inner bearings) is of help in countering cynicism understood as insincerity or self-interest (Sect. 4.1). Second, to counter the use of cynicism as both a ‘sword’ and a ‘shield’, the states’ legal obligations need to be further clarified (Sect. 4.2).

4.1

The Principle of Good Faith

The general principle of ‘good faith’43 does not allow for insincerity, for being negative up to breaking point, or for ridiculing the law. It is, inter alia, foreseen in Article 2(2) of the UN Charter and in the Friendly Relations Declaration that each state has the duty to comply fully and in good faith with its international obligations.44 The

43 For further discussion on how the prohibition of abuse of rights might be based on the general principle of good faith, see the contribution by Andrea Faraci and Luigi Lonardo, ‘Abuse of Right in International Law: A Roman Law Analogy’, in this volume, and the comment thereof by Helmut Philipp Aust, ‘Abuse of Rights: From Roman law to International Law?’, in this volume. 44 UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc A/RES/2625(XXV) (24 October 1970). Today, the qualification of good faith as a general principle of law is widely accepted in legal scholarship, see e.g. Virally (1983), p. 133; Kolb (2006), pp. 17–20; Linderfalk (2018), p. 4 with further references, and international case law, see e.g. ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Rep 1974, 3, para. 70; ICJ, Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Rep 1997, 7, para. 135; ICJ, Nuclear Test Case (Australia v. France), Judgment of 20 December 1974, ICJ Rep 1974, 253, para. 46; ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1989, ICJ Rep 1980, 73, paras. 47 et seqq.; WTO Appellate Body, United States – Import Prohibitions of Certain Shrimp and Shrimp Products (United States v. India, Malaysia, Pakistan, and Thailand), Report of 12 October 1998, WT/DS58/AB/R, paras. 4.11, 4.98, 5.60.

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principle of good faith has many different facets.45 It essentially highlights the subjective attitude states need to take towards their objective obligations. It can be called a properly moral concept, searching to introduce into the law a measure of rectitude, correctness, fair dealing, honest belief, absence of malice. In this sense, good faith is a state of mind and of inner spirit.46

As one of the ‘major pillars of treaty law’,47 the principle of good faith underlies several rules of the Vienna Convention on the Law of Treaties.48 In particular, Articles 26 and 31(1) VCLT may be of help when dealing with the interpretation of economic and social rights. The requirement under Article 31(1) VCLT that ‘a treaty must be interpreted in good faith’ establishes a requirement of reasonableness.49 Under Article 26 VCLT, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’. This provision requires each party to apply the treaty in a reasonable way, considering the expectations of the other parties and openly revealing its own motives and purposes.50 It obliges each party to refrain from defeating the object and purpose of the treaty even when the act itself is not expressly prohibited by the treaty.51 The telos of economic and social rights has been described by the Committee on Economic, Social and Cultural Rights as to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.52

The obligation to move towards the realisation of object and purpose particularly applies where the wording of a treaty leaves states a wide margin of discretion,53 as is the case with most economic and social rights. Here, the principle of good faith, as expressed in Article 26 VCLT, may be called upon when states hide behind the open wording of the ICESCR their reluctance to realise economic and social rights:

45

For the different facets and concretisations, see Kolb (2006), pp. 19–20; Kotzur (2009), paras. 14, 25–26. 46 Kolb (2006), p. 14; see also O’Connor (1991), p. 124. 47 Schmalenbach (2018a), para. 7. 48 The preamble to the VCLT recites ‘that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised’. For further reading, see Reinhold (2013), pp. 59–63; Linderfalk (2018), p. 27; Kotzur (2009), para. 19–21. 49 Dörr (2018), para. 60; Villiger (2009), p. 425. 50 ICJ, Gabčíkovo-Nagymaros, supra note 44, para 142; Kotzur (2009), para. 20. 51 ILC, Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966, vol II, commentary to Article 23, p. 211, para 4; ICJ, Gabčíkovo-Nagymaros, supra note 44, para 142; Schmalenbach (2018b), para. 49. 52 UNCESCR, General Comment No. 3, supra note 15, para. 9. 53 Villiger (2009), p. 367; Reinhold (2013), p. 61; Linderfalk (2018), p. 19; ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ Rep 2008, 177, para. 145.

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If interpretation of the Covenant is approached on the assumption that the UN General Assembly which adopted it, and the states which have ratified it, have acted in good faith, then our overriding concern will be to breathe life into provisions that have all too often been derided as meaningless simply because of their complexity and relative open-endedness.54

Furthermore, and this leads directly to the next subsection, the principle of good faith underlines the importance of the pronouncements of expert treaty bodies. The International Law Commission, in the Commentary to its Guide to Practice on Reservations to Treaties stated that while expert treaty bodies’ ‘conclusions are not legally binding . . . States parties are obliged . . . to “take account” of their assessments in good faith’.55

4.2

Legal Vagueness and Academic and (Quasi-)Judicial Clarification of Disputed Terms and Concepts

To solve the problem of legal vagueness which allows states to use cynicism as a ‘sword and a shield’ against economic and social rights, I propose solutions to the problems of justiciability of economic and social rights (Sect. 4.2.1) and the (lacking) clarity of substantive norms (Sect. 4.2.2). As Caroline Lichuma highlighted, the works of legal scholars and the Committee have led to progress in the interpretation and implementation of social and economic rights. The legal basis for such progress is found, on the one hand, in Article 38(1)(d) ICJ Statute which names judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law. On the other hand, the interpretative rules of the Vienna Convention on the Law of Treaties allow for a progressive development of economic and social rights. Article 31(1) VCLT does not only state that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty, but also in the light of its object and purpose. Furthermore, Article 31(3) (b) VCLT names subsequent practice establishing agreement of the states as means of interpretation. While subsequent practice is based on state practice—which includes the practice of domestic courts56—pronouncements of treaty bodies57

54

Alston and Quinn (1987), p. 161. ILC, Report of the sixty third session, UN Doc A/66/10/Add.1 (2011), Chapter IV: Reservations to treaties, p. 402, para. 3; see also Kotzur (2009), para. 25. 56 See e.g. ILC, Report of the seventieth Session, UN Doc A/73/10 (2018), Chapter IV: Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries, p. 32. 57 Id., pp. 39–40. 55

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may also ‘be relevant when assessing the subsequent practice of parties to a treaty’.58

4.2.1

Justiciability of Economic and Social Rights and the Counter-Majoritarian Difficulty

States that argue against the justiciability of economic and social rights may, inter alia, rely on Alexander Bickel’s critique of the judiciary as being counter-majoritarian.59 Similarly, Edouard Lambert argued against a ‘gouvernement des juges’.60 Today, however, further research in political science offers very convincing arguments against this counter-majoritarian understanding of the judiciary: first, courts are not necessarily counter-majoritarian, as judges are in principle elected by the majority and are thus democratically legitimated. Second, they often will decide in support of the majoritarian view61 and might even strengthen participatory democracy.62 Third, courts not only judge, but also govern with the legislative branch through an ongoing dialogue. While the separation of powers doctrine prohibits a gouvernement des juges (a government by judges) it does not prohibit a government with judges.63 This heightened judicial influence is already laid out in many constitutions which foresee for judicial review of legislative acts.64 A functional understanding of the separation of powers doctrine further supports this view since by initiating a dialogue with the legislature, the judiciary helps in concretising the normative content of the law generally, and of economic and social rights specifically. To do so, however, some judicial restraint is necessary. Take as an example the ground-breaking Grootboom case. While the South African Constitutional Court had already recognised that economic and social

58 UN General Assembly, Resolution on the report of the Sixth Committee (A/73/556), Subsequent agreements and subsequent practice in relation to the interpretation to the interpretation of treaties, UN Doc A/RES/73/202 (3 January 2019), Conclusion 5(2). Moreover, the commentary particularly cites examples of general comments of the UN Human Rights Committee and the UNCESCR that gave rise to, or referred to, subsequent practice, id., pp. 111–112. 59 Bickel (1962). 60 Lambert (2018). 61 Ackerman (2007), pp. 1790–1791; Lemieu and Watkins (2009), pp. 34–36; Powe (2000); ECtHR, Lautsi and others v. Italy (GC), App no 30814/06, 18 March 2011. 62 Constitutional Court of South Africa, Doctors for Life International v Speaker of the National Assembly and Others, Judgment of 17 August 2006, (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC). 63 Stone-Sweet (2000), pp. 90–91 and 150–152. 64 Id., pp. 73 et seq. and 137 et seq.

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rights are subjective rights,65 it clarified how this justiciability plays out in detail in its seminal Grootboom judgment. The court reaffirmed the subjective rights character of economic and social rights, but was observant to the balance of powers and showed judicial restraint by developing a standard of reasonableness instead of applying strict scrutiny. It held that: A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. . . . It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations.66

To fulfil the reasonableness standard, the government must, inter alia, ‘disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected’.67 Consequently, a margin of discretion for the state in formulating their general policy exists. This concept of reasonableness has proven to be a successful compromise between strict scrutiny and a possible lack of judicial review. First developed by a domestic court, it was consequently adopted internationally in Article 8(4) of the Optional Protocol to the ICESCR. In 2017, for instance, the Committee on Economic, Social and Cultural Rights stated that Spain should have prevented a family with children from having to leave their home. It held that Spain had to assess the current situation of the family and, following genuine consultation, grant them public housing or any other measure enabling them to enjoy adequate accommodation. While the view further called for appropriate legislative measures in this regard, it, however, left it to the legislative authority to determine the specific form of these measures.68 Through such a dialogue, the content of the norms will become clearer and more explicit.69 Still more interpretative work on the economic and social rights needs to be done which in turn requires subjective rights. Only through subjective rights can courts—

65 Constitutional Court of South Africa, Government of the Republic of South Africa and Others v. Grootboom and Others, Judgment of 4 October 2000, Case No. CCT 11/00, 2000 (11) BCLR 1169, para. 20 (by referring to Certification of the Constitution of South Africa, Judgment of 6 September 1996, Case CCT 23/96, 1996 (10) BCLR 1253, 1996 (4) SA 744 (CC), para. 78, the Court held that ‘these rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights entrenched in the [constitutional text before this Court for certification in that case] will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion’. 66 Id., para. 41. 67 Constitutional Court of South Africa, Mazibuko and Others v. City of Johannesburg and Others, Judgment of 8 October 2009, Case No. CCT 39/09, 2010 (3) BCLR 239, para. 161. 68 UNCESCR, Mohamed Ben Djazia and Naouel Bellili v. Spain, Communication No. 5/2015, UN Doc E/C.12/61/D/5/2015 (21 July 2017), paras. 20–21. 69 De Schutter (2013).

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for which the subjective nature and justiciability of economic and social rights are a necessary precondition in furthering the understanding of the norm—be activated to express themselves on the content of the norms. While the Committee certainly does not rely exclusively on the individual complaints procedure—its main output still lies within the 24 General Comments and 501 Concluding Observations—this procedure, in which six substantial views already have been adopted, also allows economic and social rights to be defined more clearly.70

4.2.2

(Lacking) Clarity of Substantive Norms and the Use of Quantitative Methods

To tackle the lack of clarity of substantive economic and social rights, academia and the Committee make use of quantitative methods based in political science and economics. Indicators and Benchmarks: ‘Progressive Realization’, Maximum Available Resources’, and ‘Minimum Core Obligations’ A prominent approach used not only by academics but also by the Committee to further clarify the content of economic and social rights relies on indicators and benchmarks.71 Essentially, indicators are variables from which statements about a development or a situation in general can be derived. For example, the Committee’s reporting guidelines since 2009 include the infant and maternal mortality rates as an indicator for the health sector.72 The indicator alone allows one to assess the level of enjoyment of the right. In a next step, an indicator is then combined with benchmarks, i.e. targets that states parties must achieve. This allows for a measure of whether, and to what extent, countries have made actual progress over the five-year reporting periods.73 Thus, the obligation stemming from Article 2(1) ICESCR ‘to achieve progressively the full realization’ of a specific economic and social right can be made more concrete by setting certain benchmarks based on indicators, e.g. that the states must halve the child mortality rate within five years.74 70

Cf. id., p. 9. See e.g. Office of the High Commissioner for Human Rights (2012), Human Rights Indicators: A Guide to Measurement and Implementation. https://www.ohchr.org/documents/publications/ human_rights_indicators_en.pdf. Accessed 29 April 2020; Green (2001); Landman (2004); de Beco (2007); Welling (2008); Rosga and Satterthwaite (2009); Landman and Carvalho (2010); de Beco (2010); Heymann et al. (2015). 72 UN Secretary General, Compilation of Guidelines on the Form and Content of Reports to Be Submitted by States Parties to the International Human Rights Treaties, UN Doc HRI/GEN/2/Rev.6 (2 June 2009), p. 23. 73 de Beco (2010), pp. 279–280. 74 Id., pp. 277 et seq. 71

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Another approach, the Social and Economic Rights Fulfilment Index, is equally based on indicators and benchmarks. However, it also considers the available state resources and sets up a complex system to measure whether states have progressively realised economic and social rights.75 It measures the degree of realisation of six different rights76 and relates them to the available state resources, as measured in terms of gross national product per capita. The relationship between these variables indicates whether a state is fulfilling its obligations under the ICESCR. Furthermore, indicators can also be used to give concrete form to the so-called ‘minimum core obligations’ identified by the Committee, which represent a minimum standard that needs to be immediately achieved. If certain thresholds set up by indicators are not reached, then the state party is in violation of the substantive norm.77 Finally, the requirement to apply economic and social rights in a non-discriminatory manner (Article 2(2) ICESCR) can be measured empirically. For this purpose, the data must be disaggregated, i.e. a distinction must be made,78 e.g. between the health status of different population groups such as women, children, men, social welfare recipients, unemployed persons and foreigners. By comparing the data of different groups, information can be obtained on issues of discrimination.79 For example, in the UK the COVID-19 rate between different ethnic groups differs widely, which could point to discrimination in the field of the right to health.80 In this way, indicators and benchmarks may help in clarifying the content of state obligations and thus to define state obligations in more detail. Public Budget Analysis: ‘Maximum Available Resources’ Another economic method to clarify legal norms is the so-called public budget analysis, which is used to determine whether the criterion of ‘the maximum of its available resource’ as provided for in Article 2(1) ICESCR is fulfilled.81 Basically, the budget analysis is a matter of analysing the balance of different expenditures in

75

Fukuda-Parr et al. (2015), p. 243; Fukuda-Parr et al. (2009). Right to Adequate Housing, Right to Education; Right to Food; Right to Health; Right to Decent Work; and the Right to Social Security, see Fukuda-Parr et al. (2015), p. 244; Fukuda-Parr et al. (2009), pp. 201–203. 77 de Beco (2010), p. 275; Rosga and Satterthwaite (2009), pp. 270–271. 78 de Beco (2010), p. 279; Rosga and Satterthwaite (2009), pp. 299–300; Green (2001), p. 1085. 79 But note Fukuda-Parr et al. (2009), pp. 199–200 (holding that measuring discrimination is ‘problematic from a data availability standpoint, since cross-country data on socioeconomic outcomes disaggregated by ethnic and racial subgroups does not exist for most countries. Data of any kind on the distribution of outcomes is sparse.’). 80 Barr et al. (2020) and Booth and Barr (2020). 81 UN Development Programme (1991); de Beco (2010), pp. 283–284; Dutschke et al. (2010); De Schutter (2013), pp. 18–22. 76

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the state budget.82 Whether or not a state is progressively developing economic and social rights ‘to the maximum of its available resources’ is determined, inter alia, by how its expenditures on economic and social rights develop, not only in isolation but also in relation to other expenditures in the state budget, such as debt repayment or defence expenditure.83

A Very Short Normative Critique of Economic and Political Science Approaches to Clarify Legal Norms Generally, these approaches may be helpful in clarifying economic and social rights. However, from a legal point of view, a word of caution should be added: indicators and their calculation methods can have many shortcomings, be it an inadequate database or disputed criteria or definitions for indicators.84 While the question of whether a state has fulfilled these criteria can be answered objectively based on empirical evidence, choosing and defining an indicator is a normative task.85 In addition, the indicators and their calculation methods may lead to an assessment that does not correspond to the economic and social rights enshrined in ICESCR. For example, the indicator ‘access to a water tap’ may be used to define the right to water in more detail, but it does not do so in a conclusive manner as it does not measure the access to safe water.86 At the beginning of the 2000s, however, this indicator was considered sufficient by many states although the indicator measured neither whether water actually flew from the tap nor whether the water was safe to drink.87 This example demonstrates that indicators cannot replace interpretation by courts, and can only provide information for this interpretation. Their use must be subject to review by the institutions which are legitimised under constitutional or international law, i.e. primarily the national courts, but also the Committee on Economic, Social and Cultural Rights. Finally, while the budget analysis approach is certainly helpful, from a legal perspective, it must be considered that the funds for the realisation of economic and social rights do not have to come from the state, but can also be provided by private individuals.

82

See more detailed De Schutter (2019). De Schutter (2013), pp. 18 et seqq. 84 de Beco (2010), p. 281; Welling (2008), pp. 957–958. 85 Rosga and Satterthwaite (2009), p. 302; cf. de Beco (2010), pp. 281–282. 86 On the normative content of the right to water, see UNCESCR, General Comment No. 15: The Right to Water (Articles 11 and 12 of the Covenant), UN Doc E/C.12/2002/11 (20 January 2003), particularly para. 37. 87 Murthy (2018), p. 395, with further references. 83

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While words will be—and must be—open to interpretation and will allow for cynical approaches, we can, however, narrow the margin of interpretation open to the states by using quantitative methods based in political science and economics.

5 Conclusion: Keep on Trusting in International Law To conclude: my comment is not a dissenting opinion but a separate opinion. While Caroline Lichuma and I follow different understandings of cynicism, I agree that economic and social rights have a more difficult stance as compared to civil and political rights. I also agree that far too often, states fail to comply with economic and social rights. And finally, I also agree that we need to keep our spirits and hope up and that we are seeing developments, some of which Caroline Lichuma and I have described, that justify such a positive and hopeful spirit. My fellow international lawyers: please, do not become cynics—instead be optimistic, believe in change and in the power of the law. Keep calm and keep on trusting in international law!

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Dominik Steiger is Professor of International Law, European Law and Public Law at Technische Universität Dresden, Germany, and Academic Director of the TU Dresden Centre for International Studies.

All Is Fair in Law and War? Legal Cynicism in the Israeli-Palestinian Conflict Shiri Krebs

Abstract This chapter focuses on the role played by international law generally, and international criminal investigations particularly, in a growing new battlefield: the war on public perception of contested wartime events. Building on the theory of legal cynicism, the chapter argues that perceptions of the illegitimacy of international humanitarian law weaken the legal authority of international law and its potential to guide behaviour during armed conflicts. This chapter focuses on the Israeli-Palestinian conflict, arguing that the prevalence of legally cynical framing of international law, institutions and war crimes investigations intensifies pre-existing processes of social backlash and denial among Jewish-Israelis. To test this argument, the chapter utilises both qualitative and quantitative methods. First, the chapter analyses the international humanitarian law-based investigations concerning the 2018 Israel-Gaza border hostilities, demonstrating the centrality of international law—and the ‘war crimes’ terminology—in these fact-finding efforts, and the way these processes strengthened legally cynical framing of international law among Jewish-Israelis. Second, the chapter reports data from a survey-experiment measuring the impact of ‘war crimes’ terminology on Jewish-Israelis’ beliefs about contested wartime actions committed by Israeli soldiers. The findings demonstrate that adopting international legal terminology to present facts about war actions affects people’s willingness to believe the reported facts. In particular, framing factual findings about Israeli military activities in the West Bank and Gaza using ‘war crimes’ terminology decreases the willingness of Jewish-Israelis to believe reports about Palestinians’ deaths. Moreover, using legal terminology to present and interpret facts does not stimulate feelings of guilt or empathy toward the victims. The findings suggest that applying international humanitarian law to disseminate information about wartime events may backfire, contributing to production of disinformation and of cynical perception of international humanitarian law.

S. Krebs (*) Deakin University School of Law, Melbourne, VIC, Australia © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_14

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1 Introduction On 1 June 2018, Israeli forces killed Razan Al-Najjar, a twenty-one-year-old Palestinian paramedic, during demonstrations along the Israel-Gaza border.1 Her death triggered intense debates concerning the factual circumstances of the shooting and their legal consequences. In response, the Israeli military, as well as several international and domestic organisations, investigated the case, reaching opposing legal conclusions centred on a single question: whether Israeli soldiers committed war crimes.2 However, rather than bringing clarity and resolving the controversies, the legal investigations seemed only to multiply the number of issues subject to dispute.3 As of this writing, the facts remain uncertain; the legal debates are unresolved; no individual was identified as responsible for Razan’s death; no military process or order was found faulty; and meaningful accountability therefore seems further away than ever. This chapter focuses on the role played by international law generally, and international criminal investigations particularly, in a growing new battlefield: the war on public perception of contested wartime events. Building on the theory of legal cynicism, the chapter argues that perceptions of the illegitimacy of international humanitarian law weaken the legal authority of international law and its potential to guide behaviour during armed conflicts. In particular, this chapter focuses on the Israeli-Palestinian conflict, arguing that the prevalence of legally cynical framing of international law and institutions in general, and war crimes investigations in particular, intensifies pre-existing processes of social backlash and denial among Jewish-Israelis. The chapter analyses the many conflicting reports and findings concerning the 2018 Israel-Gaza border hostilities, issued by Israeli authorities as well as by various domestic and international organisations. These investigations and their findings demonstrate both the centrality of international law—and the ‘war crimes’ terminology—in the fact-finding efforts, and the way these processes strengthened legally cynical framing of international law among Jewish-Israelis. The chapter further reports data from a survey-experiment measuring the impact of ‘war crimes’ terminology on social beliefs about contested wartime events. The survey-experiment, fielded in Israel in 2017 with a representative sample of 2,000 Jewish-Israeli citizens,4 directly measures the effects of the war crimes terminology on JewishIsraeli attitudes and beliefs about lethal Israeli Defense Forces (IDF) actions in the

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Abuheweila and Kershner (2018). See part 3, infra. 3 McKernan (2018). 4 The sample is representative of the Jewish population in Israel, and does not include its Arab citizens. The main reason to focus on the perceptions of the Jewish population in Israel is that the experiment was designed to test processes of backlash and denial among the perpetrators’ community. Additionally, it was impractical to recruit enough Arab-Israeli participants to be able to draw meaningful conclusions from this sub-sample, considering the experimental design. 2

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West Bank. The findings from both the qualitative and quantitative data demonstrate that international law frames, such as ‘war crimes’, significantly decrease JewishIsraelis’ willingness to believe information about Palestinian casualties and fail to stimulate feelings of guilt or empathy toward the victims. Jewish-Israelis tend to reject facts framed in ‘war crimes’ terminology and are more likely to feel anger and resentment than guilt or shame.5 These findings contribute to the broader debate about the role played by international law during armed conflicts, suggesting that rather than serving as an educational and informative tool, some of its audiences perceive it as a cynical political tool and a weapon in the war on public opinion. Part 2 begins with a brief review of legal cynicism in the Israeli-Palestinian conflict. Part 3 then analyses the international and domestic investigations into the death of Razan Al-Najjar and the 2018 Israel-Gaza border hostilities. Situated within this framework, part 4 describes and reports the results of the survey experiment and part 5 discusses these findings, urging a reconsideration of popular legal framings and structures used to respond to wartime controversies.

2 International Law, Legal Cynicism, and the Israeli-Palestinian Conflict While classic approaches to international law invoke an assumption of legal objectivity,6 international law has many subjective aspects, as any system that requires interpretation and implementation of rules based on human discretion and consideration.7 Contemporary critiques of international law argue that beyond this inescapable subjectivity, international law is tainted by a degree of legal cynicism,8 and either (or both) apologetic or utopian politicisation of the content and application of its rules.9 Legal cynicism refers to a fundamental distrust in the basic intention of the laws and legal authorities.10 The term was developed in the domestic policing context in the USA, where it was used to highlight the sense in which laws or rules are not considered binding in the existential, present lives of individuals, as well as people’s level of ratification of acting in ways that are outside of the law and social norms.11

A comprehensive description of the experiment’s design and findings was originally published by the Harvard National Security Journal, Krebs (2019). 6 Higgins (1983), p. 37; Scott (1994), p. 320. 7 Dworkin (2013), p. 30; Purvis (1991), p. 123; Kennedy (2005), p. 21; Kennedy (1980). For a thorough discussion of the critiques of the objectivity assumption, see Koskenniemi (2006), pp. 16–71. 8 Hagan and Ivković (2006), pp. 134–135. 9 Koskenniemi (1990), p. 31. 10 Ryo (2016–2017), Tyler and Huo (2002), p. 108. 11 Sampson and Dawn (1998), p. 786. 5

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Kirk and Parachriptos defined legal cynicism somewhat differently, as a cultural orientation in which the law and the agents of its enforcement are viewed as illegitimate, unresponsive, and ill equipped to ensure social order and safety.12 Originally developed to explain violent crime in the domestic US context,13 this theory has been recently applied in the international context to explain systematically organised insurgent violence in Iraq, in response to reports of unnecessary violent attacks by US/Coalition soldiers.14 Hagan, Kaiser and Hansen demonstrated that legally cynical framing of the US invasion and occupation of Iraq directly influenced and enabled the persistence of insurgent attacks against the US and coalition forces, as well as against Iraqi government forces.15 Consequently, they conclude that “[t]he theory of legal cynicism has broad relevance and potential for theoretical growth,”16 as well as applicability to other international—and international law governed—settings.17 Building on this theory of legal cynicism, this chapter argues that in some contexts (national and territorial) international humanitarian law suffers from perceptions of illegitimacy as a legal regime, which could be explained in terms of legal cynicism. Actual or perceived politicisation of international law institutions, as well as the growing uncertainty concerning the interpretation and application of international humanitarian law norms in concrete cases contribute to this legal cynicism.18 international humanitarian law’s perceived illegitimacy weakens the legal authority of international law and its potential to guide behaviour during armed conflicts. Several recent examples—including the international responses to the conflicts in Crimea and Syria—have demonstrated the growing uncertainty concerning both the content and application of international humanitarian law’s main rules in various contexts.19 Coupled with an institutional and enforcement deficit, as well as a lack of supreme judicial authority,20 the application of international humanitarian law norms to concrete wartime actions often end up intensifying both factual and legal disagreements.21

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Kirk and Papachristos (2011), p. 1191. Cloward and Ohlin (1960), Matza (1964), Sampson and Dawn (1998). 14 Hagan et al. (2016). 15 Id., p. 340. 16 Id., p. 321. 17 Hagan et al. demonstrate how the legal cynicism theory, which was prominently used to explain homicide rates in a US city, can be expanded internationally to explain systematically organised insurgent violence in Iraq. As they explain, similar extensions of the theory can be useful in other contexts. Id., p. 324. 18 Eyal Benvenisti argued that the content of international humanitarian law (or law of armed conflict) depends on the identity of the interpreting body, see Benvenisti (2010), pp. 358–359. 19 Krieger and Nolte (2019), pp. 9–10. 20 See generally Shany (2005). 21 Krieger and Nolte (2019), pp. 3, 9. I have discussed both the factual and legal controversies elsewhere, see Krebs (2016, 2017). 13

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In particular, this chapter focuses on the Israeli-Palestinian conflict, arguing that the prevalence of legally cynical framing of international law and institutions in general, and war crimes investigations in particular, intensifies pre-existing processes of social backlash and denial among Jewish-Israelis. A significant aspect of legal cynicism in the international humanitarian law context is the perception that its rules are meaningless, and can tolerate any interpretation, depending on the identity and political goals of the entity or individual applying it. In the context of the IsraeliPalestinian conflict, international law scholars and experts have often issued—in real-time—contrasting legal opinions interpreting international law to allow or prohibit certain military actions. For example, in 2014, during operation ‘Protective Edge’, the Israeli Government decided to reduce the supply of electricity to the Gaza Strip as a part of its fighting methods. Immediately—and while intense hostilities continued—scholars published learned legal opinions on the legality of this method, reaching opposing legal conclusions.22 The constant and intense controversies concerning some of the most fundamental principles of international humanitarian law influence public perception of international law. In particular, the Israeli public perceives international law as an easily manipulated regime that can tolerate almost any interpretation or conclusion, depending on the political and ideological commitments of those utilising its norms. This perception, in turn, justifies resistance to unfavorable international reports and decisions. Returning to the example of the electricity supply to Gaza, the legal uncertainty around the proper application of international law and the scholarly debates that followed enabled the Israeli Government to maintain its position, anchoring it in international law. In 2012, during operation ‘Pillar of defence’, the Israeli media went as far as naming lawyers defending controversial Israeli Defense Forces actions ‘legal iron dome’.23 The Jewish-Israeli public has not only resisted the outputs and outcomes of international law processes and interventions but has also denounced international legal institutions altogether.24 The Israeli public’s response to the 2009 Report of the UN Fact-Finding Mission on the Gaza Conflict (‘The Goldstone Report’) demonstrates this dynamic. Following the release of the Goldstone Report, which blamed both Israelis and Palestinians for the commission of war crimes,25 the Israeli Government issued its reports.26 The facts produced by the Israeli reports stood in

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Bell (2014) and Ben-Naftali et al. (2014). ‘Iron Dome’ is the missile defence system that protects Israeli cities from Palestinian rockets. See Grossman (2012). 24 A 2013 global public opinion poll conducted by Pew Research Center found that the Israeli public holds the most hostile attitudes about the United Nations, with a 70% of the population expressing unfavourable opinions towards the institution, see Drake (2013). 25 UNHCR, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, Human Rights Council, UN Doc A/HRC/12/48 (25 Sep 2009) (hereinafter: Goldstone Report). 26 Israel Ministry of Foreign Affairs (2009) Initial Response to Report of the Fact-Finding Mission on Gaza Established Pursuant to Resolution S-9/1 of the Human Rights Council. http://mfa.gov.il/ 23

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stark contradiction to the facts established by the Goldstone Report,27 and its legal findings sparked new debates and alternative interpretations of the law.28 These opposing legal findings made it easier for the Israeli public to reject the Goldstone Report as biased and unfounded.29 Ultimately, the Report became, in itself, a part of the conflict.30 These examples demonstrate two interrelated phenomena: the first is the intentional use of international law norms and terminology to advance political goals. The second is the developing Jewish-Israeli perception of international law norms and institutions as illegitimate and cynical. Under this view, international humanitarian law is not a legitimate legal regime that provides order and security during armed conflicts, but, alternatively, a politicised regime utilised by those seeking to delegitimise Israel and threaten its very existence. It is against this background that the 2018 Israel-Gaza border hostilities and the controversies that followed, should be studied and understood.

3 The 2018 Hostilities Along the Israel-Gaza Border 3.1

Competing Narratives31

30 March 2018 was the opening day of months-long, massive Palestinian demonstrations along the Israel-Gaza border,32 in which Israeli forces killed one hundred MFA_Graphics/MFA%20Gallery/Documents/GoldstoneReportInitialResponse240909.pdf. Accessed 30 April 2020; Israel Ministry of Foreign Affairs (2010) Gaza Operation Investigations: An Update. http://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/ GazaOperationInvestigationsUpdate.pdf. Accessed 30 April 2020) (hereinafter: Israel Report). 27 On several incidents described in the Goldstone Mission, the Israeli counter-report contained an opposing factual description of the events, specifically concerning the identification of various targets as military or civilian targets, the munition used, and the intent or knowledge of the commanders in the field. See, for example, the conflicting factual accounts concerning the destruction of the El-Bader flour mill (Goldstone Report, supra note 25 at 199–201, Israel Report, supra note 24, 41–44) and concerning the attack on the Namar Wells (Goldstone Report, supra note 25, 208-10, Israeli Report, id., 37–38). 28 See e.g. Blank (2011); Schabas (2011); and Schmitt (2011). 29 An Israeli public opinion poll found that among Jewish-Israelis who were familiar with the report’s main conclusion, an overwhelming majority (93.5%) believed that the report was biased against Israel; and 79% rejected the finding that Israeli Defense Force soldiers have committed war crimes as false. Data courtesy of the Guttman Center for Surveys at the Israel Democracy Institute (RA) and the Evens Program in Mediation and Conflict Resolution at Tel Aviv University. See Ya’ar and Hermann (2009). 30 Krebs (2017), p. 341. 31 This section is based on Krebs (2019). 32 Khoury et al. (2018); UNHRC, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc A/HRC/40/74 (25 February 2019) (hereafter 2019 Report).

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and eighty-nine Palestinians and injured thousands.33 According to Israel’s official position,34 as well as in the eyes of most Israelis,35 these were violent riots orchestrated by Hamas to further its operational goals, including breaching the border and launching terror attacks into Israel. In contrast, according to the Palestinians, as well as many international and local human rights organisations, these were authentic and peaceful demonstrations protesting Israel’s persistent blockade suffocating the Gaza strip and its inhabitants.36 Early on these conflicting narratives influenced how observers interpreted basic facts, utilising legal terminology to give the facts meaning consistent with their narrative.37 As soon as the demonstrations broke out, debates about basic facts surrounding the events, including the level of violence used by the demonstrators and the military, were entangled with controversies about the legal interpretation of these facts.38 The Israeli military, as well as several domestic and international organisations, initiated investigations to find out what really happened and to resolve these controversies.

3.2

Domestic Fact-Finding Efforts

Within Israel, the military, as well as human rights organisations such as B’Tselem, conducted investigations into these events. Approximately two weeks into the GazaIsrael border clashes, on 13 April 2018, B’Tselem published a report documenting the killing of unarmed demonstrators by the Israeli military.39 The report included the testimonies of Palestinians who participated in, or were in the vicinity of, the demonstrations. Based on this evidence, B’Tselem concluded that the Israeli Defense Forces deliberately used lethal force against unarmed protesters standing hundreds of meters away from the fence. A significant part of the report was devoted to the debates concerning the interpretation of the relevant legal rules, emphasising Israel’s violations of international law.40 The report further criticised the Israeli

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Kubovich (2018a), and Frantzman (2018). See e.g. Israel Ministry of Foreign Affairs (2018), MFA Response to the UNHCR Resolution. Retrieved 30 April 2020, from http://mfa.gov.il/MFA/PressRoom/2018/Pages/MFA-response-tothe-UNHRC-resolution-18-May-2018.aspx; Israel Ministry of Foreign Affairs (2018), PM Netanyahu Praises the IDF and the ISA. Retrieved 30 April 2020, from http://mfa.gov.il/MFA/Press Room/2018/Pages/PM-Netanyahu-praises-the-IDF-and-the-ISA-4-April-2018.aspx. 35 A Peace Index public opinion poll from May 2018 found that 68% of Jewish Israelis believed the demonstrations were a result of Hamas’ planning, rather than a result of Gaza residents’ authentic despair over the living conditions there, Ya’ar and Hermann (2018a). 36 See e.g. Amnesty International (2018a) and Al Jazeera (2018). 37 See e.g. Landau and Khoury (2018). 38 BBC News (2018). 39 B’Tselem (2018). 40 Id., pp. 4–9. 34

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Defense Forces internal investigations system, calling them a mechanism devised for ‘whitewashing of crimes’.41 The relevant laws and facts were put to the test once more when several Israeli and Palestinian human rights organisations submitted petitions to the Israeli Supreme Court, sitting as High Court of Justice.42 The petitioners sought to invalidate any rules of engagement that empower the Israeli Defense Forces to use lethal force against Gazans protesting near the border fence unless they pose an imminent and actual threat to human life.43 On 24 May 2018, the High Court of Justice unanimously dismissed the petitions, declaring that the Israeli open-fire policy is consistent with international and Israeli law. The judgment left most of the concrete factual controversies undecided, due to lack of information, the ‘fog of war’, and the Court’s deference to the government on operational issues.44 As for the concrete shooting that killed Razan Al-Najjar, the Israeli Defense Force military investigation into this incident reportedly concluded that the fatal shooting was not intentional and was not directed at her but rather at violent protestors nearby.45 Notwithstanding this finding, the Military Advocate General decided to open a criminal investigation into Al-Najjar’s death.46 As of this writing—more than a year after Al-Najjar’s killing—this investigation is still pending.

3.3

International Fact-Finding Efforts47

14 May 2018 was a day of massive bloodshed resulting in more than 60 Palestinian casualties. Four days later, on 18 May 2018, the UN Human Rights Council held a special session on the situation in Gaza. The session ended with a resolution condemning Israel and calling for the cessation of all attacks. Section 5 of the resolution was devoted to urgently dispatching an independent, international commission of inquiry. The commission’s mandate included investigating ‘all alleged violations and abuses of international humanitarian law and international human rights law’ in the context of the military assaults on the large-scale civilian protests that had begun on 30 March 2018; establishing the facts of the alleged violations and abuses, including war crimes; identifying those responsible; and making

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Id., p. 9. Lieblich (2018). 43 Id. 44 The Supreme Court of Israel sitting as the High Court of Justice, Yesh Din v. IDF Chief of General Staff, Judgment of 24 May 2018, HCJ 3003/18 (hereinafter: HCJ 3003/18). 45 Id. 46 Kubovich (2018b). 47 This section is based on Krebs (2019). 42

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recommendations on accountability measures.48 After the death of Palestinian paramedic Razan Al-Najjar, Palestinian human rights organisation Al-Haq called on the UN Human Rights Council to add an investigation of the circumstances of her death, and its legal implications, as a part of the international fact-finding mission.49 On 25 February 2019, the commission issued its final report on the protests in the Occupied Palestinian Territory. Out of the 189 Palestinian fatalities investigated by the commission, it found the Israeli security forces’ use of live ammunition to be considered lawful in only two incidents. In all other cases, including the killing of Razan Al-Najjar, the commission concluded that the use of live ammunition by the Israeli Defense Forces was unlawful, and found reasonable grounds to believe that some of these violations may constitute international crimes, including war crimes and crimes against humanity.50 Importantly, while including some factual findings, the majority of the report focused on the legal framework and legal analysis and did not shed new light on the events or the circumstances in which most of the victims were killed. This focus emanated, as the commission emphasised, from its mandate which instructed the commission members to focus on legal accountability in general and individual criminal responsibility in particular.51 Meanwhile, the New York Times published a fact-finding report focused on the killing of Razan Al-Najjar. Based on numerous interviews as well as on hundreds of crowd-sourced videos and photographs, the New York Times’ investigation concluded that Al-Najjar was killed by a bullet fired by an Israeli sniper into a crowd that included white-coated medics in plain view. While this fact-finding report focused on factual findings and analysis, it nonetheless included legal determinations, concluding that the shooting ‘possibly’ constitutes a war crime.52 In a separate report, Amnesty International described Israel’s use of force in Gaza as ‘an abhorrent violation of international law’ that ‘appears to be wilful killing constituting war crimes’.53 Human Rights Watch published its own report, describing the Israeli actions as ‘war crimes’.54

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UNHRC, Violations of international law in the context of large-scale civilian protests in the Occupied Palestinian Territory, including East Jerusalem, UN Doc A/HRC/S-28/L.1 (18 May 2018) (hereafter: 2018 Resolution). 49 Al-Haq (2018). 50 2019 Report, supra note 32, paras. 1, 18, 20. 51 Id., paras. 1–2. 52 Halbfinger (2018). 53 Amnesty International (2018b). 54 Human Rights Watch (2018).

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The Israeli Response

The Israeli government and public were not impressed by the international criticism and legal analysis, insisting that the Israeli Defense Forces was acting lawfully in self-defence. A public opinion poll from June 2018 found that 76% of JewishIsraelis (and 65% of the general public) supported the Israeli Defense Forces and the way it has dealt with the Palestinian demonstrations along the Gazan border.55 In response to the UN Human Rights Council’s decision to dispatch a fact-finding mission to investigate the events, Israeli foreign ministry issued a statement contending that the council was dominated by ‘hypocrisy and absurdity’.56 The ministry further reiterated its stance that Israel is acting legally and correctly in protecting its sovereignty and preventing the masses from charging the border with the aim of killing Israelis and committing terror attacks, all orchestrated by the Hamas terror organisation.57

Immediately after the release of the commission’s report, Israeli Prime Minister, Benjamin Netanyahu, proclaimed that Israel outright rejects the report. Netanyahu further stated that ‘the council has set new records of hypocrisy and lies out of an obsessive hatred for Israel’. Israeli Foreign Minister Yisrael Katz called the report ‘hostile, mendacious and biased’, and Education Minister Naftali Bennett said in response that it is ‘hard to imagine the UN could sink any lower’.58 Moreover, as the controversy escalated, Israel adopted several legislative measures in response to what it considered ‘efforts to demoralise Israeli society and break . . . its soldiers’ and inhabitants’ spirits’.59 On 20 June 2018, the Israeli Parliament, the Knesset, approved in a preliminary vote a bill criminalising audio or visual documentation of Israeli Defense Forces soldiers. The bill established a new criminal offence, punishable by a five-year prison term, for anyone filming, recording, or distributing audio or visual contents documenting Israeli Defense Forces soldiers, with intent to ‘break the spirit’ of Israeli soldiers and inhabitants.60 The bill’s sponsor, MK Robert Ilatob, explained that the bill’s purpose is to prevent biased, anti-Israeli coverage against Israeli soldiers.61 The bill’s addendum specifically names Israeli NGOs B’Tselem and Breaking the Silence, among others, as exemplifying anti-Israeli groups whose efforts documenting Israeli military

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Ya’ar and Hermann (2018b). Israel Report, supra note 24. 57 Id. 58 Landau (2019). 59 Knesset Announcements (2018), First Stage of Legislation Approved: Prohibition of Documenting IDF Soldiers. Retrieved 30 April 2020, from http://m.knesset.gov.il/News/ PressReleases/pages/press200618-2.aspx. 60 Anyone who documents or distributes such documentation with the intent to harm national security could face up to ten years in prison. Lis (2018a). 61 Id. 56

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activities must be frustrated.62 Both organisations were known to have cooperated with and provided information to previous fact-finding missions established by the UN Human Rights Council, including the 2015 Davis report and the 2009 Goldstone report.63 This new piece of legislation came as a direct response to the fact-finding efforts by the UN Human Rights Council, Amnesty International, Human Rights Watch, and domestic organisations like B’Tselem.64 In other words, these legalistic factfinding efforts, rather than helping to abate conflict, instead produced an intense rejection of information, to the point of criminalising fact-finding activities. Moreover, this law is consistent with the Israeli public’s broader rejection of civil society and human rights organisations, and with a series of new laws that the Israeli Parliament recently introduced to limit the activities of left-wing NGOs.65

3.5

The Centrality of International Law and the War Crimes Label in the Controversy About the Israeli Actions

On all fronts, the fact-finding efforts devoted to the Gaza border demonstrations focused on legal analysis. Factfinders purposefully gathered relevant information to determine whether Israeli Defense Forces commanders and soldiers violated legal rules and whether they committed crimes. During this information-gathering process, factfinders collected facts based on their relevance to the normative framework. Only information that they deemed relevant to potential violations of international humanitarian law or international human rights law was considered. Factfinders then assessed and interpreted these facts to reach legal conclusions, and, specifically, to determine whether Israeli Defense Forces soldiers committed war crimes. The report produced by B’Tselem described the events in terms of ‘human rights violations’ and ‘illegal, widespread, use of military power’;66 it considered the

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Id. Goldstone Report, supra note 23; UNHRC, Report of the Detailed Findings of the Independent Commission of Inquiry established Pursuant to Human Rights Council Resolution S-21/1, UN Doc A/HRC/29/CRP.4 (24 June 2015). 64 The bill’s sponsor, MK Robert Ilatov, acknowledged this connection: ‘I think that the incident that truly woke us was when the IDF was preparing for the provocations in the Gaza border, and we saw activists who attacked them and shoved cameras at them’, see Zaitun (2018). 65 For example, on 7 May 2019, Israeli authorities revoked the work permit for Omar Shakir, the Human Rights Watch Israel and Palestine Director, and ordered him to leave the country within 14 days, citing his anti-Israel activities. Additionally, on 17 July 2018, the Knesset approved a bill prohibiting NGOs ‘acting against IDF soldiers’ from entering schools or meeting with students. The bill’s sponsors specifically named B’Tselem’s CEO as an example of one who would be banned from lecturing at schools under the new law. Lis (2018b). 66 B’Tselem (2018), paras. 6, 9. 63

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military orders to be ‘manifestly illegal’;67 and deemed the internal Israeli investigations ‘whitewashing of crimes’.68 Similarly, Human Rights Watch produced a report concluding that the Israeli Defense Forces’ use of lethal force ‘may amount to war crimes’.69 The UN Human Rights Council’s decision to dispatch a fact-finding mission to investigate these events also focused on the legal analysis—at the expense of careful collection and consideration of the relevant facts. It specifically instructed the factfinders to ‘investigate all alleged violations and abuses of international humanitarian law and international human rights law’; and to establish facts and circumstances ‘that may amount to war crimes’.70 It is no surprise, therefore, that the report issued by the commission of inquiry provided mainly legal analysis, focused on individual criminal responsibility.71 The Israeli accounts were quick to adopt a similar approach and terminology, albeit with very different conclusions. Despite acknowledging the missing facts, Justice Melcer ended his decision by accepting the respondents’ declaration that ‘the IDF soldiers act[ed] in accordance with international law and Israeli law and fully respect the humanitarian responsibilities laid upon them by the law of war’.72 ChiefJustice Hayut emphasised that the lack of factual findings did not obligate the court, at that stage, to find that the military orders, or how they had been implemented in the field, were unlawful.73 The military investigation reportedly concluded that despite apparent mistakes, the soldiers acted lawfully, and the only determination that was (initially) released to the public was that ‘no violation’ had occurred.74 Ultimately, the legal focus, and particularly the war crimes terminology, dominated—and intensified—the debates about the Israel-Gaza border incidents. While the controversy about the legality of the Israeli actions is far from being settled, basic facts— including the range of the fire, the type of ammunition used, the protestors’ distance from the border fence, and the particular engagement of the victims’ in the protests— have remained mostly unexplored. Did the legal focus of the fact-finding efforts influence the controversy? Did the dominant use of the ‘war crimes’ terminology contribute to the Israeli backlash that followed? This chapter argues that the politicisation of international humanitarian law, the uncertainty concerning its content and interpretation, and its constant use by conflicting parties to justify opposite positions (which is somewhat inherent to the adversarial legal process), significantly constrain its ability to resolve factual or legal controversies. The next section presents empirical evidence supporting this claim.

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Id., 7. Id., 9. 69 Human Rights Watch (2018). 70 2018 Resolution, supra note 48, para. 5. 71 2019 Report, supra note 32. 72 HCJ 3003/18, supra note 44, para. 66 (Judge Melcer). 73 Id., para. 13 (Judge Hayut). 74 Kubovich (2018b). 68

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4 The Impact of War Crimes Framing on Beliefs About Wartime Events 4.1

The Framing Effects of the War Crimes Terminology

The decision to place information in a particular context creates a ‘framing effect’, subtly shaping how people interpret this information.75 Just as with any other organising structure, legal terms create ‘frames’ under which individuals categorise and interpret information. As a result, different legal terms have a distinct impact on people’s cognition.76 The facts established by various organisations concerning the Gaza border protests can be organised according to two framing categories: legal terminology (violation/war crime), and assignment of blame (absolving/incriminating). The terminology category signals differences in gravity, responsibility, and punishment.77 War crimes terminology indicates a higher gravity or scale of the wrongdoing, criminal responsibility of group members, and a strong sense of social ostracism; while violations terminology indicates a lower scale of wrongdoing, state responsibility, and a weak sense of social ostracism (if any).78 The assignment of blame category indicates a binary outcome, either absolving or incriminating the suspects. This simple binary structure of fault/no-fault, lawful/unlawful, is a fundamental characteristic of the criminal legal process, and it often creates inconsistencies between the legal categories and at least some of the relevant facts.79 The combination of war crimes terminology with the assignment of legal blame could trigger intense social resistance, as a result of several social processes, such as cognitive consistency,80 confirmation bias,81 motivated cognition,82 and collective memories and beliefs.83 In his book on the psychology of denial, Cohen explains that individuals select information that fits with their existing perceptual frames, while

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Kahneman and Tversky (1984), and Goffman (1974). For example, in a study from 1995, McCaffery et al. demonstrated how different legal framings of jury instructions led to substantive difference in compensation awards. McCaffery et al. (1995), p. 1344. In a later study, focused on the framing effects of strict liability versus negligence, Cupp and Polage found that jurors are more likely to award damages if the information they receive is presented using a negligence framing (a moral failing by the manufacturer to act reasonably) than if the information is presented to them using a strict liability framing (a legal doctrine that allows liability regardless of blameworthiness). Cupp and Polage (2002), p. 900. 77 Scheffer (2006). 78 See e.g. Meron (1994); and Smith (2002). 79 Shany (2008), p. 69. 80 Lord et al. (1979); and Simon et al. (2004). 81 Nickerson (1998). 82 Kunda (1990). 83 Bar-Tal (1998), pp. 25–26; Bar-Tal (2003), p. 77. 76

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shutting out information that is too threatening.84 In other words, a legal frame that threatens core social beliefs and identities might trigger a defensive reaction and lead to rejection or distortion of the new information. In the context of the IsraeliPalestinian conflict, core societal beliefs of the Jewish-Israeli society are the belief that ‘the IDF is the most moral army in the world’, and the construal of the Palestinians as an evil enemy and Jewish-Israelis as the victims of Palestinian violence.85 The ‘war crimes’ frame that controlled the debates on the Gaza border protests, therefore, threatened these core societal beliefs ingrained within the JewishIsraeli society, triggering backlash and denial.86

4.2

The Experimental Design

To empirically test this argument, I designed a survey-experiment that measured the effect of war crime framing on beliefs about Palestinian fatalities among JewishIsraelis, against various alternative framings. The experiment was fielded in Israel in January 2017 with a representative sample of 2,000 Jewish-Israeli nationals.87 The participants were randomly assigned to one of four legal conclusions (ranging in gravity from an absolving to a war crime conclusion).88 Participants were presented with an executive summary of an investigation into an event in which Israeli Defense Forces soldiers killed a Hamas fighter in the West Bank after he attacked their post and killed a member of their unit. As a result of the soldiers’ fire, several unarmed Palestinian bystanders were also killed. After reading the factual summary of the events, participants were presented with the report’s judgment, concluding that the Israeli Defense Forces soldiers: (i) did not violate international law; (ii) violated international law; (iii) committed war crimes; or (iv) that no conclusions could be made. After reading the report’s summary, participants were asked several questions about the credibility of the report (its accuracy, objectivity, completeness, believability, and fairness), and their feelings towards the report, the victims, and the Israeli Defense Forces soldiers (including anger, shame, empathy, and guilt). Additionally, the survey considered demographic, political, social, and economic measurements.89 84

Cohen (2001). Krebs (2017), p. 362. 86 Oren et al. (2015), p. 219; Medzini (2009). 87 The sample was generated by iPanel, a surveying company that uses established sampling techniques to generate a sample that approximates the demographic composition of the adult Jewish-Israeli population. Further information about the design of the experiment and the descriptive statistics of the sample is detailed in Krebs (2019). 88 The experiment also included a randomised institution condition, presenting the report as issued by the UN or Israel’s Defence Ministry. However, the issue of source legitimacy is beyond the scope of this chapter. 89 The full text of the vignette and the subsequent survey instrument are reported in Krebs (2019). 85

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Facts Believability, by Legal Conclusion Condition

Mean Facts Believability (0–100)

65 60 55 50 45 40 35 30 25 No violation

No conclusion

Violation

War crime

Legal Conclusion Error Bars: 95% Cl

Fig. 1 Facts believability, by legal framing condition. Figure 1 presents the mean values of the facts believability rating by legal framing condition. 95% Confidence Interval (CI) shown

4.3 4.3.1

Results War Crimes Framing Triggers Backlash and Denial

The results demonstrated a significant effect of legal conclusions on the believability of the facts and the perceived fairness of the report. Figure 1 shows, as the gravity or condemnation of the legal conclusion intensifies (from ‘no violation’, to ‘no conclusion’, to ‘violation’, and to ‘war crime’), participants’ willingness to believe the facts decreases. While only the absolving report received a positive believability rating, there was a significant drop in the willingness to believe the facts with every escalation of the harshness of the legal conclusion. Ultimately, reports adopting a ‘war crime’ finding were rated significantly lower on their credibility by JewishIsraelis than reports adopting a ‘no conclusion’ or even a ‘violation’ finding.90

90 An independent-sample t-test indicated that the ‘war crime’ conclusion (Mean ¼ 37.17, SD ¼ 28.65) resulted in a significantly lower believability rating than the ‘no conclusion’ condition (Mean ¼ 47.16, SD ¼ 27.96) (t(988) ¼ 5.55, p < 0.001, d ¼ 0.35), or the ‘violation’ conclusion (Mean ¼ 42.29, SD ¼ 27.65) (t(990) ¼ 2.86, p < 0.001, d ¼ 0.18).

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Report Fairness, by Legal Conclusion Condition

Mean Report Fairness (0–100)

65 60 55 50 45 40 35 30 25 No violation

No conclusion

Violation

War crime

Legal Conclusion Error Bars: 95% Cl

Fig. 2 Report fairness, by legal framing condition. Figure 2 presents the mean values of the report fairness by legal framing condition. 95% CI’s shown

Similar results were observed with all additional credibility variables. Figure 2 presents the mean of the report fairness variable by the legal framing condition.

4.3.2

War Crimes Framing Triggers Anger; Does Not Influence Guilt or Empathy

Figure 3 demonstrates that—consistently with the credibility variables—as the legal conclusion becomes harsher, the respondents’ feeling of anger towards the report increases. The results show that reports adopting a ‘war crime’ legal conclusion resulted in an increase of 22% on the anger thermometer over reports without any legal conclusion. In other words, the adoption of ‘war crimes’ legal terminology had a significant impact on respondents’ feelings of anger and resentment toward the report and its findings. Figure 3 presents the means of the anger thermometer by the legal judgment condition.

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Mean Anger Towards the Report (0–100)

Anger Towards the Report, by Legal Condition

70 65 60 55 50 45 40 35 30 No violation

No conclusion

Violation

War crime

Legal Conclusion Error Bars: 95% Cl

Fig. 3 Anger towards the report, by legal framing condition. Figure 3 presents the mean values of the anger towards the report by legal framing condition. 95% CI’s shown

While the legal conclusion significantly influenced feelings of anger and resentment towards the report, participants’ feelings of guilt and empathy for the victims remained low throughout. The legal conclusion did not influence these measures, nor did the gravity of the events, reflected by the number of Palestinian casualties.91 In other words, ‘war crimes’ reports were perceived as false and triggered anger and resentment among Jewish-Israelis. Consequently, such reports failed to generate feelings of guilt or empathy towards the victims by this specific audience.92 This finding is particularly significant, as prior research demonstrated that guilt motivates

91

A linear regression analysis was used to test if the legal conclusion predicted participants’ feeling of guilt. The results of the regression indicated that the legal conclusion did not explain the level of guilt (R2 ¼ 0.00, F(1981) ¼ 0.45, p ¼ 0.5). Another linear regression was used to test if the number of casualties predicted the level of guilt. As anticipated, the results of the regression indicated that the number of casualties did not predict the level of guilt (R2 ¼ 0.00, F(1981) ¼ 2.15, p ¼ 0.14). 92 Jewish-Israelis are not a homogeneous society, and the results were further analysed based on political ideology, religiosity, and additional characteristics, to provide better accuracy and nuance. However, this analysis is beyond the scope of this chapter.

252

S. Krebs Guilt Thermometer, by Legal Conclusion

Mean Guilt Thermometer (0–100)

40

30

20

10

0 No violation

No conclusion

Violation

War crime

Legal Conclusion Error Bars: 95% Cl

Fig. 4 Guilt thermometer, by legal framing condition. Figure 4 presents the mean values of the guilt thermometer, by legal framing condition. 95% CI’s shown

reparative action, such as confessing or apologising,93 fosters an acceptance of responsibility rather than a tendency to blame others,94 and instigates feelings of empathy.95 Figure 4 demonstrates the guilt thermometer by legal framing.

5 Discussion This chapter builds on legal cynicism theory to develop an explanation for some of the backlash we currently witness against international humanitarian law norms and institutions. In particular, I examined recent processes leading to a cynical perception of international humanitarian law among Jewish-Israelis, and the consequences of this legal cynicism.

93

Tangney et al. (2014), p. 799. Van Stokkom (2002), p. 347. 95 Id., p. 348; Karstedt (2002), p. 312. 94

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The analysis of the 2018 Gaza border demonstrations establishes the centrality of international humanitarian law terminology in fact-finding efforts concerning the events, and the experimental findings indicated that a ‘war crimes’ framing of Israeli soldiers’ actions triggers backlash and denial within the Jewish-Israeli society. The data from the experiments demonstrate social backlash in Israel against the use of international law generally, and its ‘war crimes’ terminology in particular, to condemn Israeli behaviour in the battlefield. In the experiment, Jewish-Israelis tended to reject facts described using war crimes terminology and were more likely to feel anger and resentment than guilt or shame. The experiment also demonstrated that this backlash is mitigated when the findings are issued by a domestic Israeli Institution, in comparison to having the facts issued by an international organisation such as the UN. These findings are consistent with legal cynicism theory, which hypothesises that when individuals perceive the legal regime as illegitimate and arbitrary, the application of the law in particular cases triggers or intensifies disengagement with the legal process, rejection of the legal decisions, and a wide dissemination of delegitimising beliefs about the legal system.96 As explained above, Jewish-Israelis perceive international law norms and institutions as illegitimate and cynical; a politicised regime utilised by those seeking to delegitimise Israel and threaten its very existence. This perceived illegitimacy weakens international law’s legal authority in the eyes of many Israelis, and trigger social rejection of findings that are based on this legal regime. As Jewish-Israelis tend to think about international law in cynical terms—i.e. as meaningless rules that can tolerate any interpretation depending on the political agenda of those relying on them—it is not surprising to find that Jewish-Israelis demonstrate resistance to unfavourable reports that rely on international law or issued by its core institutions. Moreover, the findings reported in this article suggest that cynicism about the legal regime translates into cynicism about factual assessments reported through legal lenses. In other words, the perceived illegitimacy of the legal regime triggers rejection and distortion of factual findings which are presented and interpreted using legal terminology and processes. Therefore, the common choice to produce and present information using legal framing, and centring fact-finding efforts on the legal interpretation of the facts, is counterproductive. At least on Jewish-Israelis’ perception of facts about Palestinian casualties, the empirical findings indicate that the ‘war crime’ terminology triggered significantly higher levels of rejection and denial than its alternatives. This means that legal fact-finding practices, particularly their ‘war crime’ terminology and focus, have undesirable outcomes to information dissemination and conflict resolution. These potential negative outcomes should at least be considered by governmental and non-governmental organisations, when they explore avenues for action and design fact-finding mechanisms. This short chapter cannot fully address potential long-term solutions to the cynical perception of international law within the Israeli society. However, in the

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Ryo (2016–2017), p. 1051.

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following paragraphs I highlight a few factors that may be used to alleviate some of the specified negative consequences of legal cynicism and to enhance the legitimacy of international humanitarian law fact-finding mechanisms. The first is the level and extent of participation in the fact-finding process.97 As legal cynicism expresses perceptions of illegitimacy of the legal system, organisational fairness theory supplies methods to improve perceived institutional legitimacy. One of these methods is to enhance participation through identifying and including relevant stakeholders in the fact-finding process. While it is understandably challenging to gain cooperation and enhance participation in wartime investigations, some design choices may increase the potential for participation. One way to motivate significant stakeholders—states, communities, and individuals—to participate, is by enhancing structural flexibility. Structural flexibility refers to the possibility of modifying fact-finding structures or procedures in response to changing needs or circumstances. It can be effectively enhanced by offering a menu of processes and structures to choose from, as different processes entail diverse incentives for the relevant parties.98 In accordance with this suggestion, international organisations could be better off facilitating a collaborative fact-finding effort or opening dialogue with Israeli actors, in an effort to provide a comprehensive factual assessment that is perceived as fairer and more legitimate. The second factor is objectivity and trustworthiness.99 Literature on procedural fairness established that the trustworthiness of the legal system in the eyes of its constituencies is linked with perceptions of fairness. In particular, it found that people feel that procedures are fairer when they trust the motives of decisionmakers.100 When individuals suspect decisionmakers’ motives—for example, when they believe that decisions are motivated by political agenda—they are more probable to perceive the decision (and the process leading to it) as unfair. When an international institution is perceived as politicised, this reputation may affect the perceived credibility of its findings and decisions. Therefore, more effort should be put into creating an appropriate fact-finding body, with an emphasis on its perceived objectivity by various communities. As we learn from the experiment, involving trusted internal actors may be crucial for successful dissemination of the findings. Another type of solution is to acknowledge international law’s cynical perception, and to focus fact-finding processes on finding facts relating to the relevant incident, leaving the legal categorisation of these facts to other bodies and to competent criminal investigations (where appropriate). Focusing fact-finding efforts on what happened—without referring to concrete crimes or legal lenses— will allow the investigation to include additional information that may be relevant to a broader social understanding of the events, but which is not necessarily relevant to the narrow legal questions.

97

Tyler (2004), pp. 94–95. Smith and Martinez (2009), p. 131; see also Menkel-Meadow (2009). 99 Tyler (2004). 100 Id. 98

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Returning to the Razan Al-Najjar case, the ‘war crimes’-centred fact-finding efforts detailed above triggered intense responses of denial and rejection among Israeli politicians, to the point of criminalising fact-finding activities altogether. It also played a part in the continuous de-legitimation of civil society and human rights organisations within Israeli society. As of this writing, and more than a year after the incident, all we are left with are conflicting factual findings, a never-ending military investigation, and a big question mark around important factual issues. The focus on international humanitarian law norms and war crimes terminology not only triggered anger and denial but also shifted attention away from critical factual questions concerning military culture and military processes that enable and even facilitate such incidents. Relinquishing the commitment to analysing facts through legal lenses and categories could have mitigated the negative responses within Jewish-Israeli society, and perhaps even prevented the legislation initiatives that followed. It also has the potential of focusing the investigation and its outcomes on the facts, and on a wider variety of facts than those typically collected for criminal proceedings. Additionally, conducting such a fact-finding process in collaboration with Israeli authorities, or at least with their partial participation, could have significantly enhanced the perceived credibility of the findings among JewishIsraelis. The unique example of the Jewish-Israeli society’s cynical perception of the international legal order generally, and international humanitarian law norms and institutions notably, demonstrates that—at least within this context—applying international humanitarian law to disseminate information about wartime events may backfire, contributing, instead, to production of disinformation and dissemination of cynical perception of international humanitarian law. These findings contribute to the broader debate about the role played by international law during armed conflicts, suggesting that rather than serving as an educational and informative tool, it is perceived as a cynical political tool and a weapon in the war on public opinion.

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Shiri Krebs is a senior lecturer and HDR Director at Deakin University, Melbourne, Australia, and an affiliate (non-resident) researcher at the Stanford Centre for International Security and Cooperation, Stanford University, United States of America.

Cynicism? Yes, Please! Embracing Cynicism at the International Criminal Court Elisabeth Baier

Abstract The chapter intends to change the inherently negative focus of debates surrounding cynicism in international law to a positive-constructive one concerning the International Criminal Court. This is done in three parts: First, I will argue that the International Criminal Court has always been subject to an inherently elevated risk for cynical attacks, as it was started as one of the most idealistic and utopian projects of international law, creating an immense Fallhöhe. Second, a look at the manifestations of cynicism surrounding the International Criminal Court presents an opportunity to identify many of its underlying issues. I categorise these as dismissive, abusive, institutional, and discursive cynicism. Third, the conclusion that cynical backlash should be seen as a chance, as its absolute discriminatory power can alert to and unmask existing problems, and accept it as a necessary evolutionary stage the Court must undergo, embraced as part of its coming of age story. Cynicism has the ability to demystify its targets, and the Court might be in desperate need of this demystification.

1 A Fragmented Concept of Cynicism During the conference on ‘Cynical International Law’, it became apparent that the biggest challenge for the participants was to find common ground on a contoured definition of cynicism. It therefore seems necessary to briefly explain the understanding of cynicism that underlies this chapter: cynicism as a complex attitude, For the evaluation of some preliminary ideas, I thank my former colleagues at the International Criminal Court, Eleni Chaitidou and Gilbert Bitti. Large parts of this chapter were written during travels in South America—for their hospitality and support, my gratitude goes to my former fellow LL.M. students Juan Pablo de la Maza, Sergio Mattos Rázuri and José Luis Torales. Till Zimmermann provided valuable thoughts on the first draft. Finally, I thank the organisers and participants of the conference for a stimulating discussion, especially Gerry Simpson for filling in as a commentator on such short notice. E. Baier (*) Danckert, Bärlein, Sättele, Berlin, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_15

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mindset and conduct, its defining characteristics being static rather than dynamic, fatalistic rather than optimistic, dismissive rather than affirmative. It can take on different shapes and overlap with certain, similar attitudes and behavioural patterns, which often accompany it. The basis for all cynicism always incorporates a form of critique. The expression of cynical critique, however, is absolute, polarising, discriminating and often appalling, containing an element of ridicule. Certain behaviours, such as hypocrisy (Koskenniemi: ‘acting with a hidden agenda’), rejection, resentment, deconstructivism, scepticism, or attitudes such as nihilism (Koskenniemi at the ‘Cynical International Law’ conference: ‘an opinion with no belief in the possible virtues of something’), can often appear as cynicism but are missing these elements. When cynicism moves from a mere attitude to a form of action, it can appear as abuse. Certain forms of abuse can, therefore, be cynical, but not every abuse is necessarily an expression of cynicism. Cynicism should also not be confused with rhetorical or stylistic means such as sarcasm or irony. The German author Sophie Passmann claims that ‘(irony) can turn into cynicism in the long run, an attitude that often claims to be irony, only that it no longer has any questions for the world’,1 which highlights that the lines are often fluent. The following structure of the chapter reflects this open-ended and, to some extent, fragmented understanding of cynicism, while each manifestation discussed in Part 3 explores a form of cynicism expressed towards and within international criminal law.

2 Elevated Levels of Cynicism This first part will be concerned with the question of why the International Criminal Court as an institution contains all the ingredients to produce elevated levels of cynicism and is therefore subject to more cynicism than other institutions of international law.

2.1

Cynicism as Post-Idealism

For many years, international criminal justice only knew one predominant narrative: progress. The story from Nuremberg to the ad-hoc tribunals for the former Yugoslavia and Rwanda is widely seen as one of success and carried by firm faith in the project. At its preliminary height, driven by idealism, stood the establishment of a

1

Passmann (2019) (author’s translation).

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permanent institution at the Rome Conference2 in 1998. A speech by Kofi Annan to advocate for an International Criminal Court reflects the atmosphere present at the time. He first situates the project in his interpretation of the circumstances international law found itself in at the time, claiming that ‘[w]e are living through a remarkable period in the advancement of international law’—a statement that surely not even the most optimistic international lawyer would make today—before stating that ‘[t]he international criminal court is the symbol of our highest hopes for this unity of peace and justice’ and in its establishment ‘lies the promise of universal justice’.3 These words are indicative of the utopian expectations considerable parts of the international community placed in the project. The preamble of the Rome Statute claims no less than the establishment of the International Criminal Court ‘for the sake of present and future generations’ and to end impunity. This created an immense Fallhöhe4 for the Court. The image carries two assumptions: The higher the position of the hero, the deeper his fall, and this fall is expected and even wanted by the audience. The hero needs to have an elevated status for his failure to be regarded as tragic, as only this elevated position makes the tragic effect possible. The position that the International Criminal Court found itself in at the time of its creation posed the imminent danger and elevated risk for a deep fall and consequent cynical backlash. This also aligns with part of Sloterdijk’s definition of modern cynicism as the ‘state of conscience, which follows naïve ideologies and their enlightenment’.5

2.2

Cynicism as the Gap Between Expectations and Reality

The term Fallhöhe also has a second meaning, which is ‘discrepancy’. The plurality of actors involved in the Court and their respective interests and expectations created a greater danger for cynical attacks from all sides. There is an enormous gap between what the International Criminal Court should be able to do in the eyes of many, and what it has shown it is factually able to do in the past 20 years, a gap of expectations regarding norms on paper and the realities of their execution. There is not only an overabundance of objectives and related expectations that the International Criminal Court tries to fulfil (retribution, deterrence, rehabilitation, the production of a historical record, giving a voice to victims, promoting human rights, ending conflicts), they are also partly in conflict with each other and thereby create tensions.6

2

UN Plenipotentiary Diplomatic Conference for the Establishment of the International Criminal Court (15 June–17 July 1998, Rome). 3 Annan (1997), pp. 365, 366. 4 A term used to describe the tragic fall of the hero in the classical drama, due to unsolvable problems, see Schopenhauer (1859), p. 498. 5 Sloterdijk (1983), p. 33. 6 Damaska (2008), p. 331.

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There is an apparent clash between trying to end an ongoing conflict and prosecute its actors, producing an accurate historical record and individualising responsibility, or providing satisfaction to victims while maintaining the rights of the accused.7 The number of crimes that the Court could potentially engage with in terms of investigation is endless, yet its resources are not.8 What Robinson calls ‘inescapable dyads’ is that expectations are not just conflicting between different actors, but even within the Court’s framework: the decision of the Court to go one way almost inevitably leads to a disappointed expectation on another side. The struggle between apology and utopia which international law often finds itself in, becomes even more apparent in international criminal law and within the field especially regarding the International Criminal Court as an institution.9

2.3

The Idea of Compromise

The Rome Statute is an altogether different and less coherent code than the Charter of the International Military Tribunal10 or the statutes of the ad-hoc tribunals, which were built on more consensus and out of a different motivation by the victorious powers of the conflicts. Undoubtedly, compromise is part of every negotiation procedure and nothing inherently negative. Every set of rules in international law will commonly be the result of compromise. There are however strong indicators that the compromises made during the Rome Conference tried to reconcile ideas, which were incompatible and would haunt the International Criminal Court in the years to come. Part II of today’s Statute on jurisdiction, admissibility and the applicable law was particularly contentious11 and should serve as an example. The groups that some states merged into during the drafting phase show that the Statute could have taken on a fundamentally different shape from the outset, moving between the ends of apology and utopia. The so-called ‘like-minded group’, including countries such as the UK, Germany and South Africa, envisaged a strong and independent International Criminal Court, while the P-5, led by the USA, favoured an active role for the UN Security Council and limitations on the jurisdiction of the Court.12 The jurisdiction of the Court could have ranged from a universal one, if Germany had prevailed with its views, to a mandatory consent model on a case-by7

Id., pp. 331–333. Robinson (2015), pp. 332–333. The adapted annual budget of the International Criminal Court for 2020 was €145.6 million, while that of the Court of Justice for the European Union was almost three times that number with €436.6 million. 9 Id., p. 326; see also Koskenniemi (2006). 10 UN, Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (‘London Agreement’) (8 August 1945, London). 11 Kirsch and Holmes (1999), pp. 4–5 and 9. 12 Id., p. 4. 8

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case basis, advocated by the USA.13 The preconditions to the exercise of jurisdiction now incorporated in Article 12 and the three trigger mechanisms laid down in Article 13 constitute key compromises and the most significant sources of criticism by both practitioners and academics at the same time. Concerning referrals by the UN Security Council it seems like the drafters of the Rome Statute had little idea how the relationship between the Court and the Council would look like in terms of involvement and responsibilities after a referral and those questions were left unanswered at the time, because of their potential to jeopardise a compromise.14 In the end, it is decisive for the success of a project if its actors regard the compromises made during the negotiation stage as fruitful or obstructive, if they find acceptance or there is an insistence on them being failures. It is doubtful if this bar for success was met during the Rome Conference. A day before the Conference was supposed to end, there was still a prevailing narrative of the ‘tale of two courts’, describing two very different concepts envisaged by the parties, and talk about a second conference.15 It might be that the Conference accepted too many compromises to ensure maximum support, while some of the main actors pushing for those compromises did not even ratify the Rome Statute in the end. As a former colleague and participant of the Conference told me: ‘You knew that you had reached a compromise when everybody was equally unhappy’—a result that had still been avoided in Nuremberg with what Gerry Simpson described as an ‘honest double standard’ during the ‘Cynical International Law’ conference. The predispositions for cynical reactions towards the institution which later emerged out of the Rome Conference were set.

3 Manifestations of International Criminal Cynicism There is a number of ways in which the cynicism surrounding the International Criminal Court manifests itself, ranging from rejecting it as an institution altogether (dismissive), actors abusing certain instruments of the Rome Statute (abusive), to cynicism coming from within the Court (institutional) and cynical commentary from scholars (discursive). This fits into the broader picture of the diverse phenotypes cynicism in an international legal context can take on, explored in the various chapters of this volume.

13

Id., pp. 4–5. Aloisi (2013), p. 157. 15 Kirk (1998), pp. 1–2. 14

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Dismissive Cynicism

Dismissive cynicism describes the rejection of the Court as an institution as such, as a form of institutional nihilism and distrust. It can appear as rejection paired with actively fighting the Court, or in the shape of former supporters, which have now turned against the Court. The United States have never been a strong supporter of the Court but recently engaged in an outright crusade against it. After President Clinton had signed the Rome Statute, George W. Bush famously ‘un-signed’ it again and negotiated over 100 bilateral agreements to prevent other states from extraditing US citizens to The Hague. In 2002, Bush signed the American Service-Members’ Protection Act, which allows the US President to use all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court,

and earned it the nickname ‘Hague Invasion Act’. After a policy of case-by-case cooperation under the Obama administration, a recent speech by former National Security Advisor John Bolton, who has shown a bizarre obsession with the Court for decades, marked a rhetorical derailment by stating to ‘let the ICC die on its own’16 and claiming to ban judges and prosecutors from entering the United States and prosecute them. While a lot of that might prove to be empty words, the recent withdrawal of Prosecutor Bensouda’s visa for the United States was not.17 It is noteworthy that at the same time, the United States never refrained from participating in processes such as the drafting of the amendments to the Statute concerning the crime of aggression, exerting its influence. In 2016, South Africa, The Gambia, and Burundi filed notifications of their intended withdrawal under Article 127(1) of the Rome Statute. While South Africa and The Gambia have since withdrawn their withdrawal due to protests on the domestic level and from several African member states, Burundi effectively withdrew as the first state party from the Rome Statute in October 2017.18 Different reasons led to these decisions. In the case of Burundi and The Gambia, it was mainly the fear of indictment for international crimes of their heads of state.19 It highlights the problem that support for the International Criminal Court is not necessarily stable even within a once approving state but can cease with a change of government, especially if the leadership of this government has to fear possible prosecution. This is also true for the Philippines, which has become the second state to withdraw from the Statute in March 2019, effectively after the Office of the Prosecutor decided to

16

Bolton (2018). US revokes visa of International Criminal Court prosecutor (2019). BBC News. Retrieved 27 June 2019, from https://www.bbc.com/news/world-us-canada-47822839. 18 Moore (2017). 19 Ssenyonjo (2017), pp. 755–757. 17

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open a preliminary examination into President Duterte’s ‘war on drugs’.20 The second reason for such dismissive attitudes is the narrative of bias of the Court. While it is an undeniable fact that all situations under investigation which have led to prosecutions so far are situated in African states, it must also be noted that African non-permanent members of the UN Security Council did not vote against the referrals made in this context, a considerable number of the remaining situations in African states were self-referrals and Cote d’Ivoire voluntarily accepted the Court’s jurisdiction under Article 12(3) of the Statute.21 These facts hardly make a persuasive bias argument.

3.2

Abusive Cynicism

The idea of an ‘abusive cynicism’ does not relate to the provisions of the Statute itself, which are analysed as being cynical. Instead, abusive cynicism describes the phenomenon of actors using the system from within, egoistically. Both the abusive and dismissive forms of cynicism described also contain an element of hypocrisy. The main lever which actors use is that of cooperation or rather lack thereof. The enforcement regime of the International Criminal Court remains a toothless tiger without it. Member states and the UN Security Council serve as examples.22 Article 13 of the Statute provides member states, the UN Security Council, and the Prosecutor with the possibility to bring cases before the Court. The drafters of the Statute had not envisaged that member states would frequently use Article 13(a) to refer to situations from their territory, so-called self-referrals. These referrals have taken on patterns in the past in which ruling elites try to rid themselves of inconvenient political opponents, mostly rebel groups. The first self-referral was the Ugandan situation and the alleged crimes of the Lord’s Resistance Army in 2003.23 The decision of the former Prosecutor Luis Moreno-Ocampo to only indict crimes committed by the Lord’s Resistance Army and not the Ugandan People’s Defence Force sparked wide-ranging criticism of the proceedings being one-sided, further fuelled by public relations work of the Prosecution being cooperative towards Ugandan President Musevini.24 It shows the general dilemma the Prosecution faces in situations where the referring state is both a party to the conflict and the 20 The Philippines’ membership in the ICC comes to an end (2019) Coalition for the International Criminal Court. Retrieved 26 June 2019, from http://www.coalitionfortheicc.org/news/20190315/ philippines-leaves-icc. 21 Ssenyonjo (2017), pp. 762, 771, 772. 22 Cases brought by proprio motu investigations face the same pitfalls, as they equally depend on state cooperation. The situations in Cote d’Ivoire and Kenya illustrate the limitations and often one-sidedness that cooperation has taken on, see Hillebrecht and Straus (2017), pp. 178–183. 23 Similar patterns can be observed regarding the referral of the situation in the Democratic Republic of the Congo and Cote d’Ivoire, see Tiemessen (2016), pp. 422–423. 24 Fisher and Stefan (2016), p. 246.

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sovereign over the territory: It is dependent upon the cooperation by the selfreferring state to be able to investigate appropriately, especially for gaining evidence and witnesses, while this cooperation potentially injects bias into the proceedings at the same time.25 The Palestinian situation before the Court was made possible as such because of the contentious jurisdictional provision of Article 12(2)(a), which allows International Criminal Court jurisdiction when the alleged crimes were committed on the territory of a member state, even by nationals of a non-member state. Palestine first lodged a declaration under Article 12(3) of the Rome Statute in 2015, accepting the exercise of jurisdiction by the Court, before acceding to the Statute and officially referring the situation on 15 May 2018.26 The Israeli Foreign Ministry has called Palestine’s accession to the Court and the referral a ‘political, hypocritical and cynical manoeuvre’ and an attempt to ‘abuse the ICC system’.27 While it is true that Palestine has limited retroactive jurisdiction, the situation still provides sufficient potentially relevant conduct on both the Palestinian and the Israeli side: rocket strikes and the use of human shields by Hamas, the killing of civilians by Israeli forces concerning Gaza, and the construction of West Bank settlements.28 The ongoing preliminary examination of the situation in Ukraine is comparable, including a declaration under Article 12(3) of the Statute. In theory, UN Security Council referrals should show the greatest potential of success in terms of effectiveness, as states are required to cooperate under Chapter VII resolutions. In practice, the opposite has happened. The first referral was the Sudanese situation in Darfur in 2005 by Resolution 1593 (2005).29 Considerable concessions were made, such as a de facto immunity for United States personnel involved in field missions, to prevent a veto by the United States and China.30 It quickly turned out that the referral itself was as far as the P-5 were willing to go. The Prosecutor issued an arrest warrant for Sudanese President al-Bashir, which despite recent developments, is outstanding until today.31 Additional to not making any efforts to enforce the warrant, several African countries, as well as China, received al-Bashir on official state visits.32 The situation in Darfur has led to an unusually explicit statement by the Prosecutor, claiming that ‘hope has 25

Id., pp. 245, 246; Tiemessen (2016), p. 421. ICC, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute, 15 May 2018, PAL-180515-Ref. 27 Palestinian Authority joins the ICC—Israel’s response (2015) Israel Ministry of Foreign Affairs. Retrieved 26 June 2019, from https://mfa.gov.il/MFA/PressRoom/2015/Pages/Palestinian-Author ity-joins-the-ICC-Israel-response-1-Apr-2015.aspx. 28 Bosco (2016), pp. 159–161. 29 UN Security Council, Resolution 1593, UN Doc S/RES/1593 (31 March 2005). 30 Aloisi (2013), p. 160. 31 Al-Bashir has been sentenced to two years in a correctional facility after being found guilty of corruption and illegitimate possession of foreign currency in December 2019. In February 2020, Sudan’s government gave hints to potentially hand him over to the International Criminal Court. 32 Forsythe (2012), p. 852. 26

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increasingly been replaced by disappointment, frustration and even anger’33 about the UN Security Council’s lack of cooperation. The same pattern—no exercise of the veto right but lack of further cooperation—can be observed concerning the Libyan situation, referred through Resolution 1970 (2011).34 The exclusion of nationals from non-member states in the resolution was widely regarded as an ‘intentional manifestation(s) to obstruct the pursuit of impartial justice’.35 There has been no action to date by the Council to address the non-cooperation of Sudan and Libya to surrender al-Bashir or Saif Gaddafi. It has completely neglected the fact that the referral of a situation in a non-member state would require intensified cooperation by itself, as the respective state is not obliged to do so under the cooperation regime of the Statute. The referrals were not backed up with any logistical, political or financial support.36 The resolutions even explicitly exclude the possibility of funding investigations and prosecutions arising from the referrals.37 Both the Sudanese and the Libyan situation were also paired with dismissive acts by member states, showing that perceived abuse from within and dismissal of the system can go hand in hand and facilitate each other. This highlights a dangerous ‘vicious circle dynamic’ for the International Criminal Court: with every cynical attack against it, the level of cynicism of all actors increases, triggering more acts of cynicism in turn. The African Union issued decisions in 2009 and 2011 for its members to refrain from all cooperation with the International Criminal Court, which resulted in a factual disregard of the arrest warrants issued by the Prosecutor.38 The reasons given in the non-cooperation decision suggest that they were a direct reaction to UN Security Council action, more specifically the Council’s refusal to respond to the African Union’s requests for deferral of the prosecution.39 As a result, al-Bashir was able to visit eight state parties since 2008 without being arrested. Most prominently, that included South Africa, which had initially been a strong supporter of the International Criminal Court but saw itself subject to the non-cooperation pressure exercised by the African Union and a resulting loyalty conflict.40 This illustrates how an abusive behaviour by one actor can cause a cynical trickle-down effect. The actions at least of Russia, the USA, and China within the P-5 can be characterised as anything from ‘carefully calculated support for advances in international criminal law’41 to using cooperation as a ‘political tool to be used

33

Bensouda (2017), para. 6. UN Security Council, Resolution 1970, UN Doc S/RES/1970 (26 February 2011). 35 Fisher and Stefan (2016), p. 250. 36 Tiemessen (2016), p. 416. 37 UN Security Council, Resolution 1593, UN Doc S/RES/1593 (31 March 2005), para. 7; and UN Security Council, Resolution 1970, UN Doc S/RES/1970 (26 February 2011), para. 8. 38 Tladi (2014), p. 391. 39 Id., pp. 391, 393. 40 Boehme (2017), pp. 67, 68. 41 Forsythe (2012), p. 853. 34

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and discarded at will’.42 This calculation did not end in favour of numerous other situations, which demanded equal attention by the UN Security Council, such as Syria or Myanmar. The decision not to refer these situations elevates the perceived level of cynicism due to the inconsistency of UN Security Council referrals. This is true, especially for the USA: The reluctance to have its nationals tried by international courts and tribunals paired with the support to do so in the case of other nations is an apparent double standard.43 When it became clear during the Rome Conference that the United States would not be able to obtain an exemption for jurisdiction over its nationals, it started a pattern of ensuring its citizens’ immunity as early as 2002, mainly through creating obligations under international agreements according to Article 98(2), while later on blocking peacekeeping missions in exchange for blanket protection of its nationals.44

3.3

Institutional Cynicism

This section covers cynicism coming from within the International Criminal Court as an institution. In many ways, this is the most worrying form of cynicism described in this part. I argue at a later stage that the Court should try to use some manifestations of cynicism in its favour. If it wants to find an answer to the cynicism surrounding it, it undoubtedly cannot afford to become a cynic itself. A considerable source of cynical behaviour stems from the current judicial culture.45 A series of recent events shall illustrate the problem, not specific cases as such.46 In 2019, Judge Ozaki, one of the judges sitting in the Ntaganda case, had requested to become a ‘non-full-time-judge’ for personal reasons, which later turned out to be her appointment as Japan’s ambassador to Estonia.47 Judge Ozaki has since revoked her ambassadorial position. Leaving aside the question of whether a political position of this nature actually endangers the independence of an International Criminal Court judge under Article 40, the request as such illustrates a considerable insensitivity towards the handling of cases with integrity within Chambers. Even the slightest danger of jeopardising the case, which at the time was already in an advanced judgment stage, should have kept any judge involved in the proceedings

42

Tladi (2014), p. 398. Forsythe (2012), pp. 843, 862. 44 Maogoto (2004), pp. 126–129. 45 On the importance of a proper institutional and collegial culture see Mistry (2017), pp. 703–727. 46 There are numerous other contentious issues stemming from within the institution. For a comprehensive summary, see Guilfoyle (2019). 47 ICC, Prosecutor v. Ntaganda, Annex 1 to the Notification of the Decision of the Plenary of Judges pursuant to Article 40 of the Rome Statute of 19 March 2019, ICC-01/04-02/06-2326-Anx1, paras. 3–5. 43

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from making such a request, bearing in mind that the alternative would have been a factual retrial according to the requirements of Article 74 (1) of the Statute. Recently, several judges, including President Eboe-Osuji, filed a lawsuit at the tribunal of the International Labour Organisation in Geneva, demanding a 26% pay raise of their close to $200,000 annual tax-free salary, plus retroactive compensation, pension increases and damages.48 The widespread reaction within large parts of the staff and external commentators can only be described with bewilderment. The lawsuit is a slap in the face of an institution, which is already struggling with budgetary problems, now having to spend an even more significant share on internal litigation. The disagreement between several judges on how to designate a Presiding Judge for the Gbagbo Appeals Chamber is an example of internal communications taken out into the public. Judge Ibañez issued a dissenting opinion, in which she expressed her irritation about the fact that Judge Eboe-Osuji had been appointed as Presiding Judge, claiming a ‘lack of clear and transparent procedures’ and the ‘absence of a fair and equal distribution of workload’.49 This was followed by a Joint Declaration of Judges Eboe-Osuji and Hofmanski, which takes issue with Judge Ibañez’ view and regrets that there was no ‘opportunity of previewing the dissent before it was filed’.50 Judge Ibañez responded in turn, claiming that there was ‘no legal basis’ for the Joint Declaration, which would amount to a ‘lack of respect for a judicial dissenting vote or opinion’.51 The last in a row of unfortunate events exemplifying cynical behaviour is a speech by Judge Brichambaut at Bejing University Law School two years ago, which only recently became public through a disqualification proceeding against him. Amongst several questionable remarks on Chambers’ internal procedures, Brichambaut states that it is the Europeans ‘who pay the bills and . . . the Africans . . . who provide the suspects and accused’52 at the Court. In times of crisis, where solidarity and strong leadership are more important than ever, these incidents paint a picture of leadership not acting in concert and setting questionable priorities on personal turf wars, rather than urgent institutional issues. The reputational damage they leave cannot be overestimated, especially given the delicate situation the Court currently finds itself in, where every one of its steps is

48

Simons (2019). ICC, Prosecutor v. Gbagbo and Blé Goudé, Dissenting Opinion of Judge Luz del Carmen Ibañez Carranza of 18 January 2019, ICC-02/11-01/15-1242-Anx1, para. 1. 50 ICC, Prosecutor v. Gbagbo and Blé Goudé, Joint Declaration of Judge Eboe-Osuji and Judge Hofmański on the Procedure on the Election of Presiding Judges of 22 January 2019, ICC-02/1101/15-1242-Anx2, para. 3. 51 ICC, Prosecutor v. Gbagbo and Blé Goudé, Statement of Judge Ibáñez Carranza with respect to the joint declaration of the President of the Court and the President of the Appeals Division on the procedure on the election of presiding judges, in relation to her dissenting vote of 24 January 2019, ICC-02/11-01/15-1242-Anx3, paras. 3–4. 52 ICC, Prosecutor v. Lubanga, Annex 1 to the Requête urgente de la Défense aux fins de récusation de M. le Juge Marc Perrin de Brichambaut of 10 April 2019, ICC-01/04-01/06-3451-Anx1. 49

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watched closely and interpreted as a potential sign of failure. They create cynical attention and feed into a consequent narrative of the judiciary. Besides the external damage, these incidents also lead to internal resentment amongst staff, whose levels of satisfaction already leave a lot to be desired.

3.4

Discursive Cynicism

The focus of this section is the role of academic commentary in current debates surrounding the International Criminal Court. The focus of these debates has already visibly shifted. An endless crisis narrative has evolved in scholarship at least in the past decade, culminating in the 20th anniversary year of the Rome Statute in 2018.53 More recently, there is a visible shift from criticism to cynicism, especially in social media, namely the blogosphere and academic tweeting, which are amplifying cynical tones. This type of cynicism is characterised by prefabricated opinions driven by a loss of faith, and an only feigned willingness to have objective discussions. A recent example is the debate surrounding the case of Laurent Gbagbo and Charles Blé Goudé. Both were acquitted in January 2019, because the Prosecutor had failed to demonstrate several core constitutive elements of the crimes as charged.54 The acquittals took place only months after the controversial acquittal of Jean-Pierre Bemba in June 2018.55 It is noteworthy that the entire debate on social media, particularly Twitter and the relevant legal blogs, took place before the written reasons of the judgment were even released.56 The overall dominant verdict was devastating, highlighting the Court’s incapability to convict accused other than rebels. It is a questionable consideration that convictions have become an indicator for the success of the Court and an argument that is not made in this generality regarding domestic courts. It is undeniable that the conviction record of the International Criminal Court is slim, which makes acquittals even more painful in terms of legitimacy. They certainly raise the question if the investigations of the Office of the Prosecutor are thorough and its cases strong enough. A sweeping condemnation in the way conducted by many commentators is, however, unconvincing and unoriginal, a destructive form of cynicism that is convenient and comfortable. The search for constructive criticism on the other hand is far more challenging. A more 53

Powderly (2019), pp. 1–11. ICC Trial Chamber I acquits Laurent Gbagbo and Charles Blé Goudé from all charges (2019) ICC press release. Retrieved 26 June 2019, from https://www.icc-cpi.int/Pages/item.aspx? name¼pr1427. 55 ICC, Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’ of 8 June 2018, ICC-01/05-01/ 08-3636-Red. 56 A summary of the immediate reactions to the acquittal can be found at https://twitter.com/Barrie_ Sander/status/1085140840199213057. Accessed 26 June 2019. 54

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conclusive approach seems to be the claim that the ‘fairness of any criminal justice system must be judged by acquittals and not by convictions’,57 which potentially even strengthen the credibility of the Court. The course of this debate is exemplary for many others,58 the pattern similar: often pre-mature reactions, questionable in tone, always to the detriment of the International Criminal Court in an almost campaign-like manner. The levels of cynicism have become alarming with some commentators; language and tone are often full of gloating joy and mockery, leaving no room for nuances. Being a cynic appears to be fashionable to remain interesting in debates. At the same time, most commentators probably do not see their cynicism as something inevitably evil, but as a participation in what Sloterdijk calls a ‘collective-realistic toned-down perception’, which contains negativity that leaves no room for hope, only irony and self-pity at best.59 It is the self-conception to be part of a critical approach to international criminal law, which has become the mainstream and is merely an expression of the realities surrounding the field, acting in the self-confidence that cynicism has become something avant-garde. If this trend will continue within more traditional channels of publication remains to be seen but would not be surprising. What do these manifestations of international criminal cynicism show? First, they are many and take on different and complex shapes; the scale of cynicism the Court must face is enormous. They come from both internal (abusive and institutional) and external (dismissive and discursive) sources. Actors, which were supposed to be allies for the Court, turned out to be severe sources of trouble. Second, none of the examples should be considered in an isolated manner. Each provides the environment for further complex patterns of cynicism. Every actor takes on a different role with different interests, which are at a constant interplay with each other and part of a wider mutually dependent and amplifying framework. Third, the fact that the International Criminal Court is more vulnerable to cynicism makes its manifestations a paradigm for its modern phenotype: The ‘enlightened false consciousness’ as the cynical Zeitgeist.60 The International Criminal Court seems to be one of the victims of this Zeitgeist.

4 The Chances of Embracing Cynicism It must be said at this point that the following arguments have become considerably harder to make in the course of drafting the chapter, as several events—especially in the year 2019—have cast further doubt on the ability of the actors within the

57

Goldstone (2019). The already mentioned debates surrounding Judges Ozaki and Ibañez are further examples which gained a lot of attention in the blogosphere, see e.g. Heller (2019a, b). 59 Sloterdijk (1983), pp. 36, 39 (translation by the author). 60 Id., pp. 37, 269, 270, 399, 950. 58

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International Criminal Court as an institution to detect the cynicisms surrounding it and use them in its favour.

4.1

Exposure and Disarmament

While these connotations are inherently negative, they also bear a chance: to unmask existing problems and focus on them almost like a magnifying glass. Abuse still requires a form of use, and each of these abuses and attacks bears the potential of a learning effect for the institution. I want to refer to some of the examples mentioned in Part II, to illustrate this claim. A recent policy paper issued by the Office of the Prosecutor shows a remarkable awareness of many issues and concepts on how to tackle them, especially on the prosecution of former heads of state as high-level perpetrators. It first acknowledges a ‘mixed performance in court’ and ‘unprecedented external challenges’, before identifying the outcome in the Bemba and Gbagbo and Blé Goudé cases as ‘unsatisfactory’, highlighting the ‘inherent tensions surrounding the exercise of the Office’s mandate’ concerning state withdrawals and expressing the expectation of an even more difficult ‘cooperation environment’ and an even ‘openly hostile approach’ towards the Office.61 This is to name only a few manifestations of cynicism mentioned in Part II, reflected in a significant policy document of one of the Court’s organs. It also contains the consideration concerning the strategic goal of a higher success rate in Court of bringing cases against notorious or mid-level perpetrators . . ., to provide deeper and broader accountability and . . . ultimately have a better prospect of conviction in potential subsequent cases against higher-level accused.62

This would mark a more modest pyramidal prosecutorial strategy similar to that of the ad-hoc tribunals and could be an indicator as to how cynical attacks directly affected a significant policy change of a Court’s organ. Interestingly, the document also anticipates possible reactions to this policy change, recognising the risk of a temporary misperception that the Office is targeting only low-level perpetrators, even though the goal of the Office remains to prosecute the most responsible either directly or through a building upwards strategy.63

The evolution of the Palestine case shows the chance from an issue occurring, its exposure through what we might call a cynical use of a provision of the Rome Statute to a possible solution. The Palestinian authorities believed that they could control the extent of the preliminary examination and use it as a bargaining strategy at their discretion. The Office of the Prosecutor places the utmost importance on the

61

ICC, Strategic Plan 2019-2021, Office of the Prosecutor of 17 July 2019, paras. 5, 5a, 8c and 11. Id., para. 24. 63 Id. 62

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fact not to leave the impression that the preliminary examination will be one-sided in any way, stating that it is ‘alarmed by the continued violence, perpetrated by actors on both sides, at the Gaza border with Israel’.64 Additionally, preliminary examinations have been extended to various non-African member states, although it remains to be seen if any of these will lead to prosecutions. With regard to the UN Security Council and its current political dynamics, it is unlikely that more referrals will take place, and given the past experiences, the Court should not regret this. The possibility of UN Security Council referrals might have to be accepted as a mistake, a further detachment from this mechanism might be an emancipation from claims of selective justice and the responsibility of failures resulting from these situations. There are, however, also examples that show that the Court is struggling to find an appropriate and serene reaction to the cynical backlash it is experiencing from some sides. In a recently published ‘Q&A’ regarding the Bashir immunities decision by the Appeals Chamber, the Court reacts to what it calls ‘animated discussion in blogosphere’ in a highly unusual manner, by criticising ‘hastily made comments . . . before the commentator has even read the judgment in question’, being ‘tweeted and retweeted, regardless of their accuracy’, even going as far as citing professional ethics and lamenting a lack of ‘honesty, integrity and fairness’.65

4.2

Authority and Solidarity

The International Criminal Court has become an authority that states turn to, even if sometimes mostly out of self-interest. The strong counter-reaction of some states towards the actions of the Court has, in fact, contributed to this. Israel has used every opportunity to make clear that it regards any International Criminal Court investigation as a threat. It even released Palestinian prisoners in exchange for Palestine not joining the Court and started a campaign to persuade the major funding member states to cut their funds.66 Ironically, Israel’s almost hysterical reaction might unwillingly be contributing to the relevance of the International Criminal Court as an institution. Equally, John Bolton’s attacks might have rather strengthened the Court’s legitimacy than weakened it. A speech by the US National Security Advisor entirely dedicated to an institution continuously claimed to be a major threat to the United States does not necessarily speak for its irrelevance, but rather for the opposite. Every dismissive act is therefore also potentially beneficial. The Palestine situation also shows a particular determination to resist political backlash from major powers—a potential sign that critical leaders at the Court have

64

Bensouda (2018). ICC, Prosecutor v. Al Bashir, Q&A regarding Appeals Chamber’s 6 May 2019 Judgment in the Jordan Referral re Al-Bashir Appeal of May 2019, ICC-PIOS-Q&A-SUD-02-01/19_Eng. Accessed 1 June 2020. 66 Kittrie (2016), pp. 206, 207, 209, 226. 65

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understood that this might be the only way for the institution to maintain its credibility and survive. Recently, the Office of the Prosecutor announced that it finds reasonable basis to proceed with an investigation into the situation in Palestine, under Article 53(1) of the Statute, however not before seeking a ruling from the Court under Article 19(3) of the Statute, ‘given the unique and highly contested legal and factual issues attaching to this situation’.67 Cynical abuses might have enabled organs of the Court to take this step and face the criticism it received for allegations of one-sided investigations. At the same time, the decision to reject an investigation into the situation in Afghanistan because it would not serve the ‘interests of justice’, due to a lack of cooperation and resources,68 looks like a reversal of that trend. It shows how difficult it will be for the Court not to slip into apologetic patterns in its future decisions and emancipate itself from the challenges inherent to the Statute, like the involvement of non-member-state actors. The reaction to the decision by academics and practitioners was almost unanimously devastating. While the pragmatic considerations behind it are understandable, the image of capitulation it creates is a dangerous one, and undoubtedly a magnet for cynicism. The Appeals stage presented the Court with a second chance to reverse this impression.69 This hope has been fulfilled: On 5 March 2020, the Appeals Chamber unanimously decided to authorise the opening of an investigation.70 The baton of providing harsh counterreactions has been moved on to Secretary of State Mike Pompeo, who is openly threatening International Criminal Court staff involved in the decision, while calling it ‘a true example of American leadership’.71 External cynical attacks can also boost a sense of internal belonging, solidarity, and togetherness. As much as support by major global players matters for the International Criminal Court—the lack of support by the United States has instead proven to be a blessing. It is safe to say that the Court would not have survived a withdrawal by a member state as large as the United States financially. The Court should develop the self-confidence to let some member states go. As painful as they might be for an institution reliant upon a universal network of member states—the recent state withdrawals and attacks have led to expressions of support and solidarity

67

Bensouda (2018). ICC, Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan of 12 April 2019, ICC-02/17-33. 69 In December 2019, the Appeals Chamber held a hearing to receive oral arguments in the appeals of victims and the Prosecutor against Pre-Trial Chamber II’s decision, as well as amici curiae briefs. 70 ICC, Situation in the Islamic Republic of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan of 5 March 2020, ICC-02/17 OA4. 71 Pompeo, M. (2020), Secretary Michael R. Pompeo’s Remarks to the Press, Washington D.C. Retrieved 29 March 2020, from https://www.state.gov/secretary-michael-r-pompeo-remarks-to-thepress-6/. 68

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by other member states.72 They can serve as a reminder for supporting states that the Court is struggling and needs continued support to survive.

4.3

Demystification and Coming of Age

Cynicism has the power to demystify, which is something the International Criminal Court might desperately need. Many norms of the Rome Statute are currently applied for the first time, and unsurprisingly face difficulties in their execution. Problems can be targeted better with each appearance of the above-mentioned cynicisms, enabling the International Criminal Court to move forward, even if it often seems to be in a ‘one step forward, two steps backward’ manner. Aspirations of reaching many conflicting goals at the same time should be reduced.73 To see this reduction of aspirations as banality or mediocrity would be a misinterpretation.74 The Guardian (humorously) claims that cynicism starts to grow at the age of 44.75 Although the International Criminal Court has not reached that age yet, the cynical backlash might be a necessary evolutionary stage the Court must go through, as part of its coming of age story. For international criminal justice in general, progress has more often proven to be fluctuating rather than linear. The same might be the case for the International Criminal Court as an institution as such, as well as its position within the broader system of international criminal law in which it operates. For many years, the Prosecution has accommodated itself in a situation using its extensive prosecutorial discretion with high geopolitical caution. This led to more International Criminal Court friendly policies even by non-member states and explicit opponents of the Court, like the USA, which for many years had stopped its hostilities and even supported the Court’s activities in some regards.76 However, this strategy, allowing the Court to stay within its comfort zone, might have been a treacherous one in the end. It is notable that many enforcement problems of the Court only started when it issued its first arrest warrants against former or sitting heads of state. It should not come as a surprise that opposition started to pick up.

72

Moorehead and Whiting (2018). Damaska (2008), pp. 340–343. 74 As for example done by Schabas (2013), p. 551, who claims that ‘international justice needs more Augusto Pinochets and fewer Hissène Habrés’. 75 Baggini (2013). 76 Bosco (2016), p. 165. 73

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5 Conclusion There is no doubt that the International Criminal Court is in a moment of crisis. Cynicism is part of the equation both as to how it came to this stage and a possible way out of it. The maxims could ironically be found in the idea of cynicism itself, however not the modern interpretation of the word, but within its ancient philosophical origins. The present meaning of the word has almost reversed from its original one, referring to a philosophical movement (ancient cynicism), which embraced virtues such as rationality, self-sufficiency, and clarity, often driven by unfortunate circumstances in the background of its advocates.77 The Court needs to resist the temptation to either turn into a cynic or let itself being pulled down by the cynicism surrounding it. It should use the cynical struggle as a chance to regenerate itself as an institution, focus on what it can do rather than cannot, and return to realistically and clearly defined maxims in the spirit of philosophical ‘ancient cynicism’. The battle against cynicism is one of many the Court will have to fight, but it is a fight it needs to win, by setting an (ancient) cynical impulse in (modern) cynical times.

References Aloisi, R. (2013). A tale of two institutions: The United Nations Security Council and the International Criminal Court. International Criminal Law Review, 13(1), 147–168. Annan, K. (1997). Advocating for an International Criminal Court. Fordham International Law Journal, 21(2), 363–366. Baggini, J. (2013). In Praise of Cynicism. The Guardian. Retrieved 26 June 2019, from https:// www.theguardian.com/world/2013/jul/10/in-praise-of-cynicism Bensouda, F. (2017). Statement before the United Nations Security Council on the Situation in Darfur, Pursuant to UNSCR 1593 (2005). Retrieved 26 June 2019, from https://www.icc-cpi. int/Pages/item.aspx?name¼170608-otp-stat-UNSC Bensouda, F. (2018). Statement Regarding the Situation in Palestine. Retrieved 26 June 2019, from https://www.icc-cpi.int/pages/item.aspx?name¼181017-otp-stat-palestine Boehme, F. (2017). We Chose Africa: South Africa and the Regional Politics of Cooperation with the International Criminal Court. International Journal of Transitional Justice, 11(1), 50–70. Bolton, J. (2018). On US Policy toward the International Criminal Court. Washington, D.C.: Federalist Society. Retrieved 26 June 2019, from https://www.voltairenet.org/article202894. html Bosco, D. (2016). Palestine in the Hague: Geopolitics and the International Criminal Court. Global Governance, 22(1), 155–171. Damaska, M. (2008). What is the Point of International Criminal Justice? Chicago-Kent Law Review, 83(1), 329–365. Fisher, K. J., & Stefan, C. G. (2016). The ethics of international criminal ‘Lawfare’. International Criminal Law Review, 16(2), 237–257. Forsythe, D. P. (2012). The UN Security Council and response to atrocities: International criminal law and the P-5. Human Rights Quarterly, 34(3), 840–863. 77

Navia (1996), pp. 7, 10, 12, 23, 28.

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Goldstone, R. (2019). Acquittals by the International Criminal Court. EJIL: Talk! Retrieved 26 June 2019, from https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/ Guilfoyle, D. (2019). Part II – This is not fine: The International Criminal Court in trouble. EJIL: Talk!. Retrieved 26 June 2019, from https://www.ejiltalk.org/part-ii-this-is-not-fine-the-interna tional-criminal-court-in-trouble/ Heller, K. J. (2019a). Judge Ozaki Must Resign – Or be Removed. Opinio Juris. Retrieved 26 June 2019, from http://opiniojuris.org/2019/03/29/judge-ozaki-must-resign-or-be-removed/ Heller, K. J. (2019b). Well, the Gbagbo ‘No Case to Answer’ Appeal Should be Interesting. Opinio Juris. Retrieved 26 June 2019, fromhttp://opiniojuris.org/2019/01/22/well-the-gbagbo-no-caseto-answer-appeal-should-be-interesting/ Hillebrecht, C., & Straus, S. (2017). Who pursues the perpetrators? State cooperation with the ICC. Human Rights Quarterly, 39(1), 162–188. Kirk, A. (1998, July 16). A tale of two courts. Terra Viva, 1–2. Kirsch, P., & Holmes, J. T. (1999). The Rome Conference on an International Criminal Court: The negotiating process. American Journal of International Law, 93(1), 2–12. Kittrie, O. F. (2016). Lawfare: Law as a weapon of war. Oxford: OUP. Koskenniemi, M. (2006). From apology to utopia: The structure of international legal argument. Cambridge: CUP. Maogoto, J. N. (2004). A giant without limbs: The International Criminal Court’s state-centric cooperation regime. The University of Queensland Law Journal, 23(1), 102–133. Mistry, H. (2017). The significance of institutional culture in enhancing the validity of international criminal tribunals. International Criminal Law Review, 17(4), 703–727. Moore, J. (2017). Burundi Quits International Criminal Court. New York Times. Retrieved 27 June 2019, https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court. html Moorehead, A., & Whiting, A. (2018). Countries’ Reactions to Bolton’s Attack on the ICC. Just Security. Accessed 26 June 2019, from https://www.justsecurity.org/60773/countries-reactionsboltons-attack-icc/ Navia, L. E. (1996). Classical cynicism. A critical study. Greenwood: Greenwood Press. Passmann, S. (2019). Alles oder nichts. ZEIT Magazin (online). https://www.zeit.de/zeit-magazin/ 2020/01/morrissey-weltschmerz-ironie-alles-oder-nichts Powderly, J. (2019). International criminal justice in an age of perpetual crisis. Leiden Journal of International Law, 32(1), 1–11. Robinson, D. (2015). Inescapable Dyads: Why the International Criminal Court cannot win. Leiden Journal of International Law, 28(2), 323–347. Schabas, W. (2013). The banality of international justice. Journal of International Criminal Justice, 11, 545–551. Schopenhauer, A. (1859). Die Welt als Wille und Vorstellung (Vol. 2). Leipzig: F. A. Brockhaus. Simons, M. (2019). In The Hague’s Lofty Judicial Halls, Judges Wrangle Over Pay. New York Times. Retrieved 26 June 2019, from https://www.nytimes.com/2019/01/20/world/europe/ hague-judges-pay.html Sloterdijk, P. (1983). Kritik der zynischen Vernunft (Vol. 1). Frankfurt am Main: Suhrkamp. Ssenyonjo, M. (2017). African States failed withdrawal from the Rome Statute of the International Criminal Court: From withdrawal notifications to constructive engagement. International Criminal Law Review, 17(5), 749–802. The Philippines’ membership in the ICC comes to an end. Coalition for the International Criminal Court. Retrieved 26 June 2019, from http://www.coalitionfortheicc.org/news/20190315/philip pines-leaves-icc Tiemessen, A. (2016). The International Criminal Court and the Lawfare of judicial intervention. International Relations, 30(4), 409–431. Tladi, D. (2014). When elephants collide it is the grass that suffers: Cooperation and the security council in the context of the AU/ICC dynamic. African Journal of Legal Studies, 7(3), 381–398.

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US Revokes Visa of International Criminal Court Prosecutor. (2019). BBC News. Retrieved 27 June 2019, from https://www.bbc.com/news/world-us-canada-47822839

Elisabeth Baier is a Barrister and Criminal Defence Counsel at Danckert Bärlein Sättele, Berlin, Germany.

Part IV

Cynicism and Abuse of Rights

Abuse of Right in International Law: A Roman Law Analogy Andrea Faraci and Luigi Lonardo

Abstract The prohibition of abuse of right allows a legal system to incorporate extra-legal considerations, for example moral ones. This chapter takes a doctrinalhistorical approach to discuss aspects of the concept of abuse of right in selected Roman law sources. This serves as an inspiration for discussing the theoretical underpinnings of abuse of right in international law, and whether this doctrine counters or allows for cynicism in international law.

1 Introduction Abuse of right is a glitch in the system, a logical paradox.1 First, it is amenable to being considered a logomachy, as plainly put by the French commentator Planiol (1853–1931): ‘If I use my right, my act is licit; and when it is illicit it is because I exceed my right and act without right’.2 Indeed, if one aligns with so-called exclusive legal positivism and considers that there is no relationship between law and morality, then there can be no ‘abuse’ (¼ a moral term) of right, but only breaches or violations of rights. Second, apart from such strict formalism, even if one considers that there is a relationship,3 or maybe

We are grateful to Professor Helmut Philipp Aust for his very helpful comments on the draft of this chapter, as well as to the organisers of and participants to the conference. 1

Guski (2018), p. 422. Planiol (1938), p. 477 as quoted by Iluyomade (1975), p. 48. 3 A relationship of any kind: dependence, validation, etc., see Statman (2010), p. 1. 2

A. Faraci (*) University of Bologna, Bologna, Italy L. Lonardo University College Cork, Cork, Ireland © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_16

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even a conflation between law and morality, then it is difficult to justify why an explicit prohibition of abuse of right might be necessary. For the purposes of this chapter, we define abuse of rights in two senses. In the first sense, abuse of right occurs when a power conferred by law is exercised for the sole purpose of creating damage to another.4 In the second sense, abuse of right occurs when a power conferred by law is exercised intentionally for an end which is different from that for which the right has been created, with the result that damage to someone else is caused.5 In both cases, there may be something cynical about abusing rights, if cynicism is understood as Peter Sloterdijk puts it in his Critique of Cynical Reason: as an antithesis to an actor’s purported idealism, which is nothing more than ‘ideology and . . . masquerade’.6 Behind the law, used as ‘masquerade’, a cynical actor could hide the purpose of creating damage to another or the exercise of power which would otherwise be prohibited.7 The tension between the formalism of the law, which lends itself to cynical uses, and the justice of a legal system, which may be too open-ended to guarantee legal certainty, is a feature well-known in the Roman law experience. For this reason, considering the century-long reflection of Roman jurists on this notion, we felt that Roman law may provide a fruitful ‘historical analogy’.8 In this chapter, we look at that legal system and try to conceptualise its basis for prohibiting the abuse of right, and then reflect on whether that theoretical basis can be extrapolated to international law. In international legal scholarship, the domestic law analogies concerning the principle of abuse of right are not scarce. Comparison with civil law jurisdictions or with the system of equity vs. common law abound.9 We decided to look at the

4 A French Court expressed it accordingly: ‘There is [an] abuse of right if it is exercised with the intention of injuring another, and perhaps also if it is exercised without an interest or without lawful motives.’ Gleyses c. Berges, [1906] D. p. II 105, 107 (Trib. Civ. Toulouse 1905) quoted in Iluyomade (1975), p. 48. Something similar to this is explicitly prohibited by Art. 54 EU Charter of Fundamental Rights (modelled upon Article 17 ECHR), titled ‘Abuse of Rights’: ‘Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.’ 5 Lauterpacht’s definition of the doctrine is of this second kind: ‘the essence of the doctrine is that, as legal rights are conferred by the community, the latter cannot countenance their anti-social use by individuals; that the exercise of a hitherto legal right becomes unlawful when it degenerates into an abuse of rights; and that there is such an abuse of rights each time the general interest of the community is injuriously affected as the result of the sacrifice of an important social or individual interest to a less important, though hitherto legally recognized, individual right’, Lauterpacht (1933), p. 286. 6 Sloterdijk (1983), p. 222. 7 Cf. also Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume. 8 For a clear perspective about the possible Roman roots of the concept of abuse of right in Italian, French and German law and several bibliographical references, see Dalla Massara (2016), pp. 1169–1203. 9 Byers (2002), p. 392; Reid (2004), p. 2.

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system of Roman law, often very much neglected in recent scholarship on international law.10 Although a comparison with Roman law can provide useful insights, this chapter does not suggest a transplant of Roman law elements into international law: too vast are the differences in time, space, and subject matter between the two systems. The first section of this chapter develops a narrative on the role of equity and good faith, building on primary sources such as the Digest that comment upon the state of Roman law from the times of the Republic (300 B.C.) until the codification of Justinian (sixth century A.D.). In the late Republican and imperial stage of the Roman Empire, the general principles of equity and good faith acted as corrective to the rigidity of law in situations which we would now classify as ‘abuse of rights’. With respect to international law, we argue in the second section that the prohibition of abuse of right can be based on certain general principles of international law. We also seek to show, however, that the use of these general principles, even when employed as a ‘corrective’ to the rigidity of a system, may mask a cynical use of international law. This is the case because the genesis and the content of those principles, while ‘masquerading’ as neutral and impartial, may hide the interests of powerful states.

2 The Roman Tradition Section 2.1 introduces, through a historical overview, the rigidity of Roman law, while Sect. 2.2 elaborates on this to explain how the Roman law system tried to correct such rigidity. Section 2.3 links the previous discussion to the prohibition of abuse of right. Through aequitas and bona fides the Romans tried to tackle cynical uses of law.

2.1

The Rigidity of Roman Law

This section will focus on the Republican (509 B.C.–31 B.C.) and early Imperial age (until the third century A.D.), when Rome developed a legal system based on legal precedents formulated by the magistrates,11 particularly the praetor.12 In this kind of structure, jurists gained a crucial role. In fact, the magistrates were rarely legal experts, and, to decide controversies, they were used to borrowing as much as

10 Lesaffer (2016), pp. 38–52; Nussbaum (1952), p. 678 takes a historical—not substantive— approach. By way of exception, the cursory reference by Tridimas (2011), p. 170. 11 The magistrates were elected officials in the Roman Republic. 12 A sub-category of magistrates vested with jurisprudential powers.

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possible from lawyers’ expertise which often resorted to the principle of aequitas.13 Nevertheless, even in later centuries when the emperor’s chancellery administered the jurisdictional power, jurists maintained this role as members of the chancellery because Roman law did not lose its casuistic nature.14 It is precisely this prominent role of jurists that led the emperor Justinian I to order, in 530 A.D., the drafting of the Digest, a huge collection of fragments of the most influential jurists’ books, as a part of his great work of Roman law’s reorganisation. In the Republican age, the concepts of equity and good faith had great influence. In fact, although the reflection on fairness as a corrective to the rigidity of law was not foreign to the ancient Greeks,15 or even to preceding legal systems,16 Roman lawyers explicitly conceptualised several links between equity and law. From the time of the monarchy (eighth century B.C.) legal proceedings in ancient Rome were handled by the pontifices maximi (‘high priests’) and were deeply related to a religious vision of law. These circumstances resulted in an imposition of a strict application of the mos maiorum (the customary law based on ancient moral precepts) or of the domestic law ( ius civile).17 A consequence of this system was the perpetuation of a specific view of morality and law of a certain social class, namely the aristocracy, as only aristocrats could be elected as pontifices maximi.18 The ritualistic arrangement of the legis actiones (‘actions at law’) dictated to the claimant to pronounce certa verba (‘the established words’) of the action. Every sort of mistake in the words pronounced would have resulted in a defeat in the legal dispute. The exaggerated formalism of this legal procedure is denounced by Gaius,19 who said: All these actions at law became the object of public hatred; this was so because of the too extreme complexity of the ancient formulas, since it came to pass that even if one made just a negligible mistake, he would lose the case.20

13

Vacca (2006), pp. 13–14. See again Vacca (2006), p. 15. 15 With a bit of an oversimplification, the tension between the two lies at the heart of Antigone’s tragedy. Reference to epieikeia (fairness, flexibility) as a corrective to law’s shortcomings is in Aristoteles, Nicomachean Ethic, book V, 1137 and Rhetoric, book I, 1374a–1375b. The oath of the Athenian Supreme Tribunal, the Heliaia, required judges to decide ‘with due respect of the law and decrees (kata tous nomous) of the city, or according to the fairest opinion (gnome dikaiotate)’. 16 Bucci (2000), pp. 15–27, with reference to the Persian and Babylonian systems and Bucci (1990), pp. 257 et seq.; mentioned in Solidoro Maruotti (2012), p. 228. 17 The literal translation of ius civile should be ‘civil law’. However, the adjective ‘civil’ must be interpreted as meaning ‘belonging to the civitas’. In other words, the ius civile is literally the ‘law of the city’. About this specific management of the Roman legal system, see Guarino (1990), pp. 241 et seq. 18 Until 254 B.C. when the first plebeian, Tiberius Coruncanius, was elected. 19 Roman lawyer in the second century B.C. and author of the Institutiones, the only original book written by a Roman lawyer preserved to the present day. 20 Gaius, Institutiones, 4,30: ‘Sed istae omnes legis actiones paulatim in odium uenerunt. namque ex nimia subtilitate ueterum, qui tunc iura condiderunt, eo res perducta est, ut uel qui minimum errasset, litem perderet’ (authors’ translation). For more information about the fragment, see Cannata (2017), pp. 51 et seq. 14

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Moreover, the ius civile applied only among Romans, which meant that foreigners could not obtain legal protection. The territorial extension of Rome also brought a development of its commercial and political relationships. Because of that, the need for reform in Rome’s production and application of legal rules quickly became a pressing issue.

2.2

Aequitas and Bona Fides

The social disapproval generated by that formulaic and inflexible system, as well as the practical exigency to improve the commercial exchanges with foreigners, forced Rome to find new solutions. In 367 B.C. the leges liciniae sextae ‘secularised’ legal proceedings by instituting the magistrate called praetor, who would sit as judge instead of the high priests. The greatest change came in 242 B.C. with the institution of the praetor peregrinus (‘traveling magistrate’)21 who had the power to judge disputes among Romans and foreigners or between foreigners.22 In addition, the magistrate did not apply the above-mentioned ius civile but ius gentium (‘the law of nations’), the set of rules commonly accepted by all peoples and mostly based on the principle of good faith. Another crucial change was the introduction of a new legal procedure, the so-called trial per formulas. The praetor could write a new formula, i.e. a new rule, whenever the law was insufficient or inappropriate with reference to a specific case.23 This extreme flexibility, which also allowed to assimilate the law of nations into the civil (or domestic) law and guided the ‘correction’ and completion of the ius civile, had its foundation in the principles of aequitas and bona fides. In the absence of a legal definition, Cicero24 attributes to equity a peculiar characteristic: ‘Equity should prevail, which requires equal laws in equal cases’.25 Thus, equity means that similar cases ought to be treated similarly. Moreover, aequitas was not ‘simply’ a general principle. It was the very foundation of the law, as Cicero put it: ‘The civil law is a system of equity established between members of the same state for the purpose of securing to each his property rights’.26

21

As opposed to the praetor urbanus, sitting in Rome. Usually, people living in Roman provinces were not citizens. 23 To go in depth into the relationship between the praetor’s role and the republican legal system, see in general Gallo (1997). On the historical evolution of the praetor and of Roman constitutional structure and procedural law, see again Guarino (1990), pp. 317 et seq. 24 Roman philosopher, politician and orator (106-43 B.C.). 25 Topica, 90, 23: ‘Valeat aequitas, quae paribus in causis paria iura desiderat’. All references to Topica refer to Cicero, On Invention. The Best Kind of Orator. Topics (Harvard University Press: Cambridge, 1949), from where the English translations are taken, unless otherwise stated. 26 Topica 2, 9: ‘ius civile est aequitas constituta eis qui eiusdem civitatis sunt ad res suas obtinendas, eius autem aequitatis utilis est cognitio; utilis est ergo iuris civilis scientia.’ Both this fragment and Topica 23, 90 and in general Cicero’s thought about aequitas are specifically studied in Solidoro Maruotti (2012), pp. 240 et seq. 22

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Aequitas is therefore a value of the entire legal system, indeed a meta-value that allowed magistrates to ‘adjust’, to ‘correct’ the law according to other social, moral, or economic considerations. It acted therefore both as methodology and as substantial principle.27 The concept of equity in the Roman legal system was not a purely moral one, but rather a technical legal tool to correct ‘positive law’ according to new social needs (such as trade with foreigners).28 Its definition, however, is problematic as generally Romans tended to avoid strict legal definitions.29 Precisely because of this multifaceted nature, the concept of aequitas acquired an essential role in Roman law’s history. This role justifies, in imperial age, Celsus’30 famous definition of law as the preserver of fairness, subsequently quoted and extended by Ulpian:31 For, in terms of Celsus’ elegant definition, the law is the art of goodness and fairness. Of that art we [the jurists] are deservedly called the priests. For we cultivate the virtue of justice and claim awareness of what is good and fair, discriminating between fair and unfair. . .32

The jurist, called even sacerdos (‘priest’) by Ulpian, had to promote what is good and, even more importantly, he had to distinguish what is fair from what is not. As commonly held among scholars, this fragment should not be considered as drawing a distinction between law and morality: Celsus’ definition, referred to by Ulpian, describes what the main jurists’ tools were—aequitas and bona fides—and how those instruments were part of the law’s purpose.33 The task of the jurist (‘cultivate the virtue of justice’) was mainly technical, as it was meant to ensure the consistency and the smooth functioning of the legal system. It was only contingently related—in the Romans’ own understanding—to elements external to the law, such as morality. The word aequitas and its linguistic variants are largely recurring in the Roman sources, especially with reference to the decrees of the praetor, which is well within the positive law. Another essential passage of the Digest shows more specifically what the Roman jurists’ method consisted of and, even more importantly, demonstrates its connection with the fundamental principle of bona fides (good faith):

27 Vacca (2006), p. 7; Guarino (1993), p. 227; Martini (1990), p. 242; and Guarino (1960), p. 619; mentioned in Solidoro Maruotti (2012), p. 238. 28 See Solidoro Maruotti (2013), p. 56; and also Solidoro Maruotti (2012) p. 238. 29 Guarino (1960), p. 619; mentioned by Vacca (2006), p. 1; and in Solidoro Maruotti (2012), p. 246. 30 Roman lawyer and politician who was also a member of the consilium principis (council of emperor’s advisers) of the Emperor Adrian (77–138 A.D.). 31 Roman lawyer and politician in the third century A.D. 32 D.1.1.1: ‘. . . nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum ab iniquo separantes . . .’; Watson (1985), p. 1. Unless otherwise specified, translations of the Digest are taken from A. Watson’s English version of the Digest. 33 For a more complete analysis of Celsus’ definition of law, see Gallo (1987), pp. 7–52; Gallo (1997), pp. 221 et seq.

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There is a natural equity in this edict. For what so accords with human faith [good faith] as that which men have decided among themselves to observe? Moreover, pact is derived from agreement.34

The close link between the two concepts is not surprising considering that the concept of good faith could be considered the bridge which introduced aequitas into Roman contract law. The Digest’s passage attributed to Tryphoninus35 makes this link even more explicit: The good faith that is required in contracts calls for maximum equity (aequitatem summam); but do we assess equity by reference to the law of nations only, or, in truth, in connection with the precepts of the civil and praetorian law?36

Bona fides, a principle that was at the basis of ius gentium,37 was also the main instrument used to renew the civil law. Several new contract schemes were introduced in the Roman set of rules using the principle of good faith: the so-called bonae fidei iudicia (judgments based on good faith). Emptio-venditio (buying and selling), commodatus (loan for use), depositum (deposit) and many other types of contract were created by the praetor referring to the concept of good faith, and they were regulated according to this principle as well. However, good faith and equity were applied not only to regulate specific types of contract, to resolve specific disputes or to avoid technical controversies, but also to produce other juridical instruments such as actiones, actions at law.

2.3

A Prohibition of the Abuse of Right?

One of such actions based on good faith was introduced in civil law precisely to tackle abuse of right: the actio doli (‘action against fraud’). Although the Digest says ‘no one is regarded as acting by fraud who makes use of his rights’,38 this is only true until and unless the actio doli can be invoked.39

Watson (1985), p. 62. D. 2.14.1pr.-1 (Ulp. IV ad ed.): ‘Huius edicti aequitas naturalis est. quid enim tam congruum fidei humanae, quam ea quae inter eos placuerunt servare? Pactum autem a pactione dicitur’. 35 Roman lawyer in third century A.D. About this specific conception of the link between aequitas and bona fides and a deeper analysis of the fragment, see in particular Talamanca (2001), p. 298; and Stolfi (2004), p. 162. 36 D. 16.3.31 pr.: ‘Bona fides quae in contractibus exigitur aequitatem summam desiderat: sed eam utrum aestimamus ad merum ius gentium an vero cum praeceptis civilibus et praetoriis?’ (authors’ translation). 37 For a wide view about the bona fides principle in Roman law, see in general Talamanca (2001); and Petrucci (2009), pp. 31–56. 38 Watson (1985), p. 474. D. 50.17.55: ‘Nullus videtur dolo facere, qui suo iure utitur’. 39 The concept of fraud is usually considered by some scholars as the perfect antithesis of good faith, see Dalla Massara (2016), p. 1172. 34

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Cicero recalls in his De Officiis40 a well-known episode about the Roman knight Canius, who was cheated in Syracuse by an argentarius (‘banker’). The story depicts well the origin of the actio doli:41 The ‘banker’ wanted to sell his house to Canius. To this effect, he paid some fishermen to pretend fishing in the area in front of the house while Canius was visiting it to persuade his victim that this little part of the sea was extremely rich in fish. Naively, Canius thought that the purchase would be a good investment thanks to the fishing and bought the house. When he discovered the truth, the deal had already been concluded. It was too late. Cicero concludes: ‘Canius was consumed by his rage, but what could he do? C. Aquilius, my friend and relative, had not yet introduced the action against fraud’.42 Only when Aquilius,43 as praetor, introduced this specific formula based on good faith, did the citizens obtain a protection against fraud. Successively, the action was also made available to the defendants in a legal dispute (the exceptio doli). In the medieval age, lawyers distinguished two different forms of this exceptio doli: first, the exceptio doli specialis,44 which the defendant could raise against a claimant who cheated in a negotiation. Second, the exceptio doli generalis was introduced and it could be used by the defendant to paralyse the claimant who tried to use rights with the only purpose of damaging the defendant. This has been considered by some scholars as the root of the contemporary prohibition of abuse of right.45 It has been argued for a long time that Roman law did not, in fact, prohibit the abuse of right.46 This statement is grounded on the above-mentioned Digest’s fragment that asserts that ‘no one is regarded as acting by fraud who makes use of his rights’ and other similar expressions. Nevertheless, these assertions do not take into consideration the several fragments that indicate that limits were established to the parties of a contract as well as property owners. This point, as well as the inextricable link between the exceptio doli and equity, and thus good faith,47 is expressed by Paulus:48 ‘The praetor established this defence to the end that a

Literally translated as ‘About Duties’, a philosophical essay written around 44 B.C. See De Officiis III, 58. All references to De Officiis refer to Cicero, On Duties (Harvard University Press: Cambridge, 1913). 42 De Officiis III, 60: ‘stomachari Canius, sed quid faceret? Nondum enim C. Aquilius, collega et familiaris meus, protulerat de dolo malo formulas’ (translation by the authors). See Garofalo (2015), p. 73. 43 Roman lawyer and politician living between the second and first century B.C. 44 For a general view about exceptio doli generalis, see Garofalo (2015), pp. 67–117; and Cerami (2005), p. 53. 45 See Dalla Massara (2008), p. 345; Dalla Massara (2016), p. 1174. 46 Concerning criticism about the existence of abuse of right in Roman law, see Buckland and McNair (1952), p. 96 and pp. 380–389; quoted also in Schwarzenberger (1956), pp. 147–179. 47 Dalla Massara (2016), p. 1184. 48 Roman lawyer in third century A.D. and praetorian prefect during Alexander Severus' reign (222–235 A.D.). 40 41

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person's fraud should not benefit him through the medium of the civil law but contrary to natural equity’.49 Paulus asserted that this specific instrument could be used as a gap-filler for the defences available in law, or against anyone who wanted to use maliciously the rights that the law itself provided to him. This general assertion is confirmed by the vast number of Digest passages mentioning the specific connection between aequitas and prohibition of abuse of right through exceptio doli.50 Equity and good faith were thus, among other things, the mechanisms through which late republican and imperial Roman law let the system adjust to extra-juridical and moral demands—those were the instruments allowing for flexibility and change.51

3 The Prohibition of Abuse of Right in International Law The prohibition of abuse of right calls into question that branch of legal positivism that sees law as a ‘pure’ discipline with no connection to morality (so-called exclusive positivism). Law prohibits something that is allowed within its own system, but that is rejected according to other rules (the rules of morality). Hence, the notion of abuse of right embodies a connection between law and morality. In Roman law, the principle of aequitas was the valve of interaction between what we now consider to be ‘law’ and ‘morality’. In today’s international law, such a connection between law and morality exists as well, as will be outlined in the next section. In limiting a ‘cynical’ use of rules, the system of international law incorporates what may be termed moral considerations. This view is shared by Lauterpacht, who argues that the prohibition of abuse of rights is a doctrine that allows to ‘correct’ or ‘temperate’ the rigidity of the law, or more generally, it allows for flexibility and change.52 However, the legal basis for such a prohibition has not always been clear in international legal scholarship. Some

Watson (1985), p. 145. D. 44.4.1.1. (Paulus 71 ad ed): ‘Ideo autem hanc exceptionem praetor proposuit, ne cui dolus suus per occasionem iuris civilis contra naturalem aequitatem prosit’. It is also worth reminding the maxim sic utero tuo ut alienum laedas which has, however, its roots in modern age. See again Garofalo (2015), p. 69. 50 See again Cerami (2005), pp. 53 et seq. The continuation of Paulus’ passage provides another interesting insight: ‘. . . and, indeed, fraud is committed as much in respect of contracts, as in respect of wills and laws’ (D. 44.4.1.3 (Paul. 71 ad ed.): ‘Et quidem dolo fit tam in contractibus quam in testamentis quam in legibus’). 51 See again Guarino (1993), p. 226. 52 Lauterpacht (1933), p. 286: With reference to the prohibition of abuse of right, ‘the doctrine . . . can be regarded as one of the great potentialities in the process of judicial legislation adjusting the law to new conditions and preventing unfair or anti-social use of rights’. For a sceptical view as to the function of a prohibition of abuse of rights in international law, see Schwarzenberger (1956), pp. 147–179. 49

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authors have deplored a conceptual conflation with other doctrines protected by international law,53 such as reasonableness, good faith, or abuse of power. Section 3.1 considers what general principles of international law the prohibition of abuse of rights might derive from, as well as the prohibition under other sources of international law. Section 3.2 considers whether these principles, grounding the prohibition, may mask the cynicism of international law.

3.1

The Basis of Abuse of Right in International Law

Where can the prohibition of abuse of right be grounded upon in today’s positive system of international law? We argue that the answer lies in general principles of law in the sense of Article 38(1)(c) of the Statute of the International Court of Justice.54 This is a legal technique comparable to the Roman law approach of addressing abuse of right based on principles such as aequitas. The prohibition of abuse of right is not a general principle by itself55 but rather expressed in specific treaty provisions or custom and is only sparingly referred to by the International Court of Justice.56 Numerous treaties explicitly prohibit abusive conduct. This is the case, among others, with Article 17 of the European Convention of Human Rights,57 Article 300 of the United Nations Convention on the Law of the Sea,58 and Article 54 of the EU Charter of Fundamental Rights.59 The concept of abuse of right is also reflected in customary international law. Evidence of state practice may derive from states’ allegations, before international courts, of an abuse of right by the opponent state.60 Instead of focusing on those specific expressions of an abuse of right prohibition in treaties and custom, we suggest that it is best understood as deriving from two accepted general principles: the principle of good

53

Kiss (2006), para. 10. See for an explanation of how the ICJ should draw inspiration from private law analogies through the institution of general principles ICJ, The International Status of South-West Africa, Advisory Opinion of 11 July 1950, Separate Opinion by Judge McNair, ICJ Rep 1950, 128, p. 148. 55 See, to this effect, Lowe (2007), p. 74; Cheng (1953), p. 121. 56 Crawford (2013), p. 36. 57 ‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’ 58 ‘Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdictions and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.’ 59 ‘Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.’ 60 Kiss (2006), paras. 11–12; Baetens (2019). 54

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faith61 and the principle of equity. We, therefore, focus on these underlying principles for an analysis of the difficulties coming with an abuse of right prohibition in international law. The prohibition of abuse of right is an inherent aspect of the general principle that good faith should guide international relations. This is the conceptualisation of Cheng62 and Lowe.63 Good faith is particularly apt to ‘control’ the abuse of rights when it comes to treaty formation,64 to the use of shared resources,65 or to the settlement of disputes,66 for example in investor-state arbitration. The link between the principle of good faith and abuse of right has been emphasised by the WTO Appellate Body in its Shrimp case. It regarded abuse of right as one application of the principle of good faith, which mandates that ‘whenever the assertion of a right impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say, reasonably’.67 Nonetheless, there are difficulties with using the principle of good faith as basis for the prohibition of abuse of right. The first is to determine the content of the general principle of good faith. The second is the application of the very concept of good faith—whatever its content—to the behaviour of states or collective entities (such as companies). The third is that not all abuses derive from bad faith. The first difficulty is very well known in international legal scholarship.68 The definition of good faith is neither obvious nor univocal. By way of example, in his monograph dedicated to good faith in international law, Kolb identifies three possible and only partially overlapping meanings.69 A concept with such uncertain boundaries risks being not functional because its very identification is far from straightforward. Good faith is perhaps best understood with a negative definition: it is the absence of ulterior or hidden motives other than those apparent. In this sense, it is a form of honesty, and for this reason it may be equated to a general moral clause. 61

The principle that treaty performance must be carried out in good faith is expressed in Article 26 of the Vienna Convention on the Law of Treaties. This was broadened by the ICJ, Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Rep 1974, 253, para. 49: ‘One of the basic principles governing the creation and performance of legal obligations ... is good faith.’ Similarly, see UN General Assembly, Draft Declaration on Rights and Duties of States, UN Doc A/RES/375 (6 December 1949), Article 13. See also the contribution by Dominik Steiger, ‘In International Law We Shall Trust – (Even in) The Case of Economic and Social Rights’, in this volume. 62 Cheng (1953), p. 121. 63 Lowe (2007), p. 74. 64 Hassan (1980/81), Fitzmaurice (1953), p. 53. 65 ICJ, Pulp Mills Case (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Rep 2010, 14 being a case in point, although the Court did not explicitly refer to the category of abuse of right. 66 Kolb (2017), p. 7. 67 WTO Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products (United States v. India, Malaysia, Pakistan, Thailand), Report of 6 November 1998, WT/DS58/ AB/R, para. 158. 68 Iluyomade (1975), p. 50. 69 Kolb (2017), p. 5.

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The second difficulty derives from the general problem of attributing motives (desires and beliefs) to collective entities. As the sole arbitrator of Metzger and Co. states, ‘it cannot be that good faith is less obligatory upon nations than upon individuals in carrying out agreements’.70 Yet how can the motives of states be ascertained, if not with reference to the motives of individuals?71 The move from the good faith of individuals to the good faith of states is far from straightforward. Yet it is not impossible if one considers the International Law Commission's Articles on State Responsibility. Article 4(1) equates the conduct of any state organ (which can be a single person) to an act of state. This would offer a solution, in so far as it would be possible to attribute the bad faith of those individuals who constitute a state organ to the state itself. Another aspect of this difficulty lies in the fact that a clear institution competent to determine the presence of bad faith, as exists in domestic administrative law to counter abuses of power, is absent—dogmatically—in international law.72 The third difficulty is conceptual: not all abuses imply bad faith. Abuse of right may arise even when the state itself does not hide its true intentions. This is confirmed, for example, by the arbitral tribunal in Philip Morris v. Australia: ‘[T]he notion of abuse does not imply a showing of bad faith’.73 In that case, the Tribunal found that Philip Morris, the investor claimant, had committed an abuse of right when it launched an investment claim against Australia, the respondent, because the investor had restructured its company not for any economic reason, but solely with the intention of initiating a claim under the Hong Kong-Australia Bilateral Investment Treaty.74 That intention, however, was never hidden. Another potential candidate as a basis for the prohibition of abuse of right is the general principle of equity. Judge Hudson said in the Diversion of Waters from River Meuse Case, that what are widely known as principles of equity have been considered to constitute a part of international law, and as such, they have often been applied by international tribunals. . . . A sharp division between law and equity, such as prevails in the administration of justice in some states, should find no place in international jurisprudence.75

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Metzger and Co. (United States v. Haiti) Foreign Relations of the United States (1901), p. 262, 271. 71 An example from Cheng (1953) p. 122, the Fur Seal Arbitration (1893) between the UK and the USA, where it was submitted that the USA ‘would have a right to complain (. . .) if it could be truly asserted that any class or set of men had, for the malicious purpose of injuring the lessees of the Pribilof Islands and not in regard to their own profit and interest and in the exercise of their own supposed rights, committed a series of acts injurious to the tenants of the Pribilof Islands.’ (Emphasis added). 72 Reinhold (2013), p. 50. 73 PCA, Philip Morris Asia Limited v. The Commonwealth of Australia, PCA Case No 2012-12, Award on Jurisdiction and Admissibility, 17 December 2015, para. 539. 74 Id., para. 588. 75 PCIJ, Diversion of Waters from the River Meuse (Netherlands v. Belgium), Individual Opinion by Judge Hudson, [1937] PCIJ Series A/B No. 70, p. 76.

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As Iluyomade correctly notes,76 equity shares with the prohibition of abuse of right the characteristic that they are both concerned with the intent, rather than the form and is therefore particularly helpful in censuring abuses of right. A link between equity and the prohibition of abuse of right has been drawn by the International Court of Justice in the Barcelona Traction case.77 In this case, the Court referred to the process of ‘lifting the corporate veil’ as ‘justified and equitable’ to protect the rights of those who entrusted their financial resources to a corporate entity against ‘dangers of abuse’.78 The relevance of the case lies in the Court’s recognition that it is equitable to have a remedy available against such dangers. In a similar way, yet with a less explicit link to equity, the Permanent Court of International Justice had argued in the Oscar Chinn case79 in relation to a Belgian measure affecting vessels in the Congo and resulting in an unfair advantage of a Belgian company, which could operate at a loss creating a situation of monopoly. The Court stated that there is nothing to prevent a merchant, a ship-owner, a manufacturer or a carrier from operating temporarily at a loss if he believes that by so doing, he will be able to keep his business going.80

The Court thus went on to find that the Belgian measure was not abusive because it was not aimed at a distortion of competition. Had that been the objective of Belgium, one gathers, the measure would have been abusive of Belgium’s right to regulate its vessels; such right had not been conferred with the aim of allowing such distortion, and its use in that case would have amounted to a prohibited abuse.

3.2

Can the Prohibition of Abuse of Right Mask Cynicism?

As the prohibition of abuse of right relies on moral considerations, the concept has an inbuilt paradox: The prohibition of abuse of right might be abused itself. Who decides what equity is? Whose ‘moral rules’ is the international community

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Iluyomade (1975), p. 53. ICJ, Case concerning the Barcelona Traction, Light and Power Co, Ltd (Belgium v. Spain), Judgment of 5 February 1970, ICJ Rep 1970, 3. 78 Id., para. 56: ‘sometimes the corporate entity has been unable to protect the rights of those who entrusted their financial resources to it; thus inevitably there have arisen dangers of abuse, as in the case of many other institutions of law. Here, then, as elsewhere, the law, confronted with economic realities, has had to provide protective measures and remedies in the interests of those within the corporate entity as well as of those outside who have dealings with it: the law has recognized that the independent existence of the legal entity cannot be treated as an absolute. It is in this context that the process of “lifting the corporate veil” or “disregarding the legal entity” has been found justified and equitable in certain circumstances or for certain purposes.’ 79 PCIJ, The Oscar Chinn Case (Britain v. Belgium), Judgment of 12 December 1934, PCIJ Series A/B No. 63. 80 Id., p. 85. 77

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supposed to apply? The ‘utopian’ answer is, of course, that the moral considerations at the core of the prohibition of abuse of right are universal. The ‘realist’ answer, instead, would point out that behind notions of ‘morality’, such as fairness and equity, one can hide interests. This answer is, we believe, not only realist but also realistic, and ought to be preferred to the utopian one. For reasons of space, we cannot develop here on the mechanisms whereby interests (and self-interest) can hide behind rules that are usually considered ‘moral’ (in the double sense of ‘governing behaviour’ and ‘good’). Jon Elster demonstrates, for example, how fairness can masquerade self-interest. His work on the methodology and epistemology of social science reveals frequently occurring mechanisms which serve to hide interests, understood as any motive common to the members of some proper group of society that aims at improving the situation of that group, behind abstract and neutral rules, such as equality or fairness.81 But if ‘morality’, now in inverted commas, hides considerations that may be in fact considered immoral—such as the self-interest of the powerful states, or of the states who have created the structural principles of international law, or of private companies—how can it be desirable to incorporate it into international law? If the prohibition of abuse of right is a veil for the interests of the powerful, then it lends itself to cynical uses, as in Sloterdijk’s understanding of modern cynicism as the powerful’s antithesis to their purported idealism which is nothing more than ‘ideology and . . . masquerade’.82 Although it is true that the prohibition of abuse of right could help counter cynical uses of international law, the flexible notion of abuse of rights might at times be the way through which those states that have shaped international law in the past and still do, continuously sneak in their interests. They can define the general principles on which the abuse of right is predicated. If this were the behaviour of powerful actors, then this would be downright cynical, at least in Sloterdijk’s terms. The conclusion we should draw from this is that the notion of abuse of right needs to be handled with caution. As Lauterpacht observed: There is no legal right, however well established, which could not, in some circumstances, be refused recognition on the ground that it has been abused. The doctrine of abuse of rights is therefore an instrument which, apart from other reasons calling for caution in the administration of international justice, must be wielded with studied restraint.83

Elster (1997), p. 137: ‘[C]laims that are motivated by interest or emotion will often be able to find an impartial equivalent-i.e., an impartial argument converging to the same conclusion. Second, impartial intent does not imply impartial effect. The law, in many contexts, allows rules that have “disparate effect” on different categories of individuals, while prohibiting those that embody “disparate intent.” Thus, a court might strike down a layoff rule that explicitly favors men over women or whites over blacks, while allowing rules based on seniority that, because of the more recent entry of women and blacks into the labor force, have the same effect.’ 82 Sloterdijk (1983), p. 222. 83 Lauterpacht (1958), p. 164; as also referred to by Baetens (2019). 81

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4 Conclusion For Roman law, equity and good faith were never legally defined, precisely to provide these concepts, and the system, with flexibility. This open-endedness allowed the law to adapt to social and political changes throughout the centuries. Bona fides, the principle Romans used to re-equilibrate and renew law, may also fulfil that function in international law. However, when compared to Roman law, there are certain difficulties in applying the principle of good faith in international law. These do not hinge on the difficult definition of the concept of good faith but rather concern the straightforward application of desires and motivations—necessary to ascertain the good faith of an actor—to collective entities. Considering the Roman and the contemporary legal experience, it seems to us that the reflection on ‘abuse of right’ points to the direction that law may sometimes function as an expression of morality.84 This is nothing new: as Habermas correctly put it, law is a ‘category of social mediation between facts and norms’.85 Western modernity’s norms—including some moral norms—are expressed not through revelation but through law. Law is what helps us applying precepts to facts. Even in case that a gate through which morality may enter international law is found in the general principles of good faith and equity grounding the prohibition on abuse of rights, it is far from obvious whose morality should permeate the system, and it can well be the case that these general principles mask cynical uses of international law. Are we resuscitating natural law? Perhaps—the scope of the inquiry was only to show how international law might ground the prohibition of abuse of right in the same way as Roman law did. Granted, this shatters a positivistic paradigm. This is not a nostalgic enterprise, but only a reflection on possible avenues to let a legal system breathe in flexibility—with the problems that this entails.

References Baetens, F. (2019). Abuse of Process and Abuse of Rights before the ICJ: Ever More Popular, Ever Less Successful? EJIL: Talk! Retrieved 27 April 2020, from https://www.ejiltalk.org/abuse-ofprocess-and-abuse-of-rights-before-the-icj-ever-more-popular-ever-less-successful/ Bucci, O. (1990). Per una storia dell’equità. Apollinaris, 62, 257–317. Bucci, O. (2000). Il principio di equità nella storia del diritto. Napoli: Edizioni Scientifiche Italiane. Buckland, W. W., & McNair, A. D. (1952). Roman law and common law. Cambridge: CUP. Byers, M. (2002). Abuse of rights: An old principle, a new age. McGill Law Journal, 47, 38. Cannata, C. A. (2017). Corso di Istituzioni di Diritto Romano (Vol. 2). Torino: Giapichelli.

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Koskenniemi (2011), p. 2: The relationship between international law and international politics is of identity (or, considering that the metaphor is that international law is to Christianity what international politics is to religion, it is a relationship of species to genus). 85 See in general Habermas (2015).

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Cerami, P. (2005). L’eccezione di dolo generale in materia di persone e famiglia. Annali del Seminario Giuridico dell’Università di Palermo, 50, 53–81. Cheng, B. (1953). General principles of law as applied by international courts and tribunals. Cambridge: CUP. Crawford, J. (2013). Brownlie’s principles of international law. Cambridge: CUP. Dalla Massara, T. (2008). La domanda frazionata e il suo contrasto con i principi di buona fede e correttezza: il ‘ripensamento’ delle Sezioni Unite. Rivista di diritto civile, 3, 345–362. Dalla Massara, T. (2016). Abuso del diritto e dolo generale: un confronto fra modelli concettuali. Rivista Trimestrale di Diritto e Procedura Civile, 70(4), 1169–1203. Elster, J. (1997). Alchemies of the mind: Transmutation and misrepresentation. Legal Theory, 3(2), 133–176. Fitzmaurice, G. (1953). The law and procedure of the International Court of Justice. British Yearbook of International Law, 30, 1–70. Gallo, F. (1987). Sulla definizione celsinea di diritto. Storia et Documenta Historiae Iuris, 53(1), 7–52. Gallo, F. (1997). L’“officium” del pretore nella produzione e applicazione del diritto. Torino: Giappichelli. Garofalo, L. (2015). Fondamenti e svolgimenti della scienza giuridica. Padova: Nuovi saggi, Cedam. Guarino, A. (1960). Equità (diritto romano). In Novissimo Digesto Italiano (Vol. 4, pp. 619–624). Torino: UTET. Guarino, A. (1990). L’ordinamento giuridico romano. Napoli: Jovene. Guarino, A. (1993). Pagine di diritto romano. Napoli: Jovene. Guski, R. (2018). The re-entry paradox: Abuse of EU law. European Law Journal, 24(6), 422–433. Habermas, J. (2015). Between facts and norms. Hoboken: John Wiley & Sons. Hassan, T. (1980/81). Good faith in treaty formation. Virginia Journal of International Law, 21(3), 443–484. Iluyomade, B. O. (1975). Scope and content of a complaint of abuse of right in international law. Harvard International Journal, 16(1), 47–92. Kiss, A. (2006). Abuse of right. In R. Wolfrum (Ed.), Max Planck Encyclopedia of Public International Law (online ed.). Oxford: OUP. Kolb, R. (2017). Good faith in international law. Oxford: Hart. Koskenniemi, M. (2011). The politics of international law. Oxford: Hart. Lauterpacht, H. (1933). The function of law in the international community. Oxford: Clarendon Press. Lauterpacht, H. (1958). The development of international law by the international court. London: Stevens & Sons. Lesaffer, R. (2016). Roman law and the intellectual history of international law. In A. Orford & F. Hoffmann (Eds.), The Oxford handbook of the theory of international law (pp. 38–58). Oxford: OUP. Lowe, V. (2007). International law. Oxford: OUP. Martini, R. (1990). «Aequitas» nell’editto del pretore. Apollinaris, 63, 241–254. Nussbaum, A. (1952). The significance of roman law in the history of international law. University of Pennsylvania Law Review, 100(5), 678–689. Petrucci, A. (2009). Buona fede e correttezza. In G. Luchetti & A. Petrucci (Eds.), Fondamenti di diritto contrattuale europeo. Dalle radici romane al Draft Common Frame of Reference (pp. 31–56). Bologna: Patròn Editore. Planiol, M. (1938). Treatise on the civil law, an English translation prepared by the Louisiana State Law Institute from the Original French Planiol, Traité Elémentaire de Droit Civil. St. Paul: West Publishing Company. Reid, E. (2004). The Doctrine of abuse of rights: Perspective from a mixed jurisdiction. Electronic Journal of Comparative Law, 8(3), 1–15.

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Reinhold, S. (2013). Good faith in international law. UCL Journal of Law and Jurisprudence, 2, 40–63. Schwarzenberger, G. (1956). Uses and abuses of the ‘abuse of rights’ in international law. Problems of Public and Private International Law. Transactions of the Grotius Society, 42, 147–179. Sloterdijk, P. (1983). Kritik der zynischen Vernunft (Vol 1). Frankfurt am Main: Suhrkamp. English translation from Sloterdijk P (1987) Critique of Cynical Reason. Minneapolis, MN: University of Minnesota Press. Solidoro Maruotti, L. (2012). Aequitas e ius scriptum. Profili storici. In: Annali della Facoltà giuridica dell’Università di Camerino, No 1/2012. Retrieved 24 May 2020, from https://afg. unicam.it/afg/sites/d7.unicam.it.afg/files/laura_solidoro_ok.pdf Solidoro Maruotti, L. (2013). Tra morale e diritto – gli itinerari dell’aequitas. Torino: Giappichelli. Statman, D. (2010). Halakha and morality: A few methodological considerations. Journal of Textual Reasoning 6(1). Retrieved 22 May 2020, from http://jtr.shanti.virginia.edu/volume-6number-1/halakha-and-morality-a-few-methodological-considerations/ Stolfi, E. (2004). Bonae fidei interpretatio. Napoli: Jovene. Talamanca, M. (2001). La bona fides nei giuristi romani: “Leerformeln” e valori dell’ordinamento. In L. Garofalo (Ed.), Il ruolo della buona fede oggettiva nell’esperienza storica e contemporanea. Atti del Convegno Internazionale di studi in onore di Alberto Burdese (Vol. 4, pp. 1–313). Cedam: Padova. Tridimas, T. (2011). Abuse of right in EU law: Some reflections with particular reference to financial law. In R. de la Feria & S. Vogenauer (Eds.), Prohibition of abuse of law: A new general principle of EU law? (pp. 169–191). Oxford: Hart. Vacca, L. (2006). Metodo Casistico e sistema prudenziale. Padova: Cedam. Watson, A. (1985). The digest of justinian. Pittsburgh: University of Pennsylvania Press.

Andrea Faraci is an Italian qualified lawyer specialising in civil litigation. He was a teaching assistant in Roman Law at the University of Bologna, Italy. Luigi Lonardo is a lecturer in EU Law at University College Cork, Ireland. He completed his PhD, supervised by Professor Takis Tridimas, on the Common Foreign and Security Policy of the European Union, at King’s College London, United Kingdom. He also teaches at the Paris School of International Affairs of Sciences Po, France.

Abuse of Rights: From Roman Law to International Law? Comments on the Contribution by Andrea Faraci and Luigi Lonardo Helmut Philipp Aust

Abstract This short comment discusses some of the key points of the contribution by Andrea Faraci and Luigi Lonardo on the trajectory of abuse of rights from Roman times to the contemporary world of international law. The comment retraces their main argument, discusses the value of Roman law analogies for today’s law, and ends with a plea for more differentiation between the different roles that international lawyers perform.

Commenting on the very rich and multi-layered chapter by Andrea Faraci and Luigi Lonardo is not an easy task. In their contribution, they take us across the millennia— from Roman law sources on aequitas and good faith to the contemporary world of international law. In this short comment, I will proceed in three steps: I will recap the main thrust of the argument of the chapter. In a second step, I will briefly reflect on the reception of Roman law into the operation of current international law. Finally, I wish to return to the question which has been hovering over many of the debates in the volume: what to do now, especially in the light of the many different professional roles that international lawyers play?

1 Reconstruction of the Main Argument The chapter sets forth a dual argument: on the one hand, it unearths a Roman law tradition for the principle of abuse of rights. On the other hand, it seeks to connect this tradition to the world of contemporary international law. The authors are rightly careful when it comes to the Roman law roots of a principle of abuse of rights. Being no expert in Roman law myself—and this is an understatement—I can only commend that careful delineation. In contemporary literature, there seems to be a H. P. Aust (*) Freie Universität Berlin, Berlin, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_17

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consensus that abuse of rights as such is a notion that was unknown to Roman law.1 Yet, as it is also the case in contemporary international law,2 the notion borders closely on other concepts such as good faith and equity.3 Understood in this way, it is possible to find related concepts also in Roman law. The authors point, particularly, to the concept of aequitas and the dual notions of actio doli and exceptio doli, which allowed for the consideration of ulterior motives in dealings covered by the jus civile. The overarching argument by the authors is that ‘equity and good faith were . . . the mechanisms through which late republican and imperial Roman law let the system adjust to extrajuridical and moral demands’, the two concepts being ‘instruments allowing for flexibility and change’. Understood in this way, aequitas and bona fide were introduced into legal thinking in order to temperate what they portray as an overly rigid formalism. This consideration is then taken to the level of contemporary international law. The authors do not suggest that there is a direct line of continuity from Roman law to international law as it stands today or that there could be a ‘transplant of Roman law elements into international law’. Their argument is much more nuanced. Yet, they seem to recognise a similar demand for flexibility and change in today’s international legal system as in Roman times. The techniques of introducing abuse of rights into the current international legal system rest, to them, on a variety of grounds. Not understanding the prohibition of abuse of rights to constitute a general principle of law on its own, they derive it from other general principles. More importantly, they seem to attribute relevance to various emanations of the principle in customary international law and treaty law. Ultimately, however, the authors are sceptical about the added value of abuse of rights: they see an inherent danger that a maxim introduced to counter a cynical use of the law only produces more cynicism—as reliance on abuse of rights might mask the interests of the powerful. In places, the chapter seems to be a bit torn when it comes to the potential ‘uses and abuses’ of the principle of abuse of rights, to borrow from the title of the famous article on the subject by Georg Schwarzenberger.4 The doctrine of abuse of rights is conceptualised as a means to integrate moral considerations into the international legal system. This morality seems to have the potential to erect a bulwark against cynical use of rules. This understanding of the principle of abuse of rights builds on the work of Hersch Lauterpacht. For Lauterpacht, abuse of rights was a means to provide for flexibility and to hence remedy some of the rigidities he identified in the international legal system at the time.5

1

Eichenhofer (2019), p. 40; Guski (2019), p. 177. For in-depth treatments of abuse of rights in contemporary international law, see Byers (2001–2002), Kiss (2008), Aust (2011), pp. 69–77; for older but still very valuable accounts, see Schlochauer (1933) and Taylor (1972–1973). 3 Kiss (2008), para. 10. 4 Schwarzenberger (1956). 5 Lauterpacht (2011) [1933], p. 306. 2

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Yet, in other parts of the chapter, there seem to be some doubts about the potential of the principle of abuse of rights. This relates to remarks towards the end of the chapter on the cynicism of international law. The chapter leaves the reader with the impression that the introduction of morality into the operation of the law was well justified in Roman times, but is potentially dangerous in public international law. The reasons identified by the authors point in the direction of abuse of the category of abuse of rights itself. So, is international law more cynical than Roman law? The chapter does not set forth a straightforward conclusion here, and I think that can be seen as an asset rather than a liability. With respect to a controversial notion such as abuse of rights, this cautious position is preferable to a hard and fast presentation of what the law allegedly is. After praising morality as a necessary corrective to positivist law and thinking, the contribution questions itself whose morality is imported into international law through the doctrine of abuse of rights. Yet, some questions ultimately remain open. Is international law in need to be corrected by morality? What does the danger that abuse of rights itself becomes ‘a veil for the interests of the powerful’ mean in concrete terms? These are all points for a future research agenda on the relation between cynicism and the principle of abuse of rights.

2 The Roman Law Analogy: A Need to Overcome Rigid Formalism? My second point relates to the construction of the chapter and the Roman law analogy. As stressed before: being no expert in Roman law myself, I cannot comment on the substance of the Roman law remarks. Yet, the question remains what work the Roman law analogy ultimately does for the argument that the chapter wishes to unfold. The authors introduce the Roman law analogy in light of the ‘century-long reflection of Roman jurists’ on the tension ‘between the formalism of the law, which lends itself to cynical uses, and the justice of a legal system, which may be too open-ended to guarantee legal certainty’, which was ‘a feature wellknown in the Roman law experience’. The authors see a similar construction at work when it comes to the foundation of the principle of abuse of rights in Roman law and in the current international legal system. This points to an understanding that there are some questions of an eternal character which pervade legal systems regardless of the timeframe in which they are set. The problem of abuse of rights seems to be, so the authors insinuate, such a perennially relevant question as it is ultimately a placeholder for a larger debate on the relationship between law and morality. If this is the case, the Roman law analogy appears to be plausible yet also of limited practical value at the same time. It is plausible if indeed we have a comparable problem before us, i.e. to balance between law’s supposedly rigid form and the quest to integrate morality. But the practical value is limited, as the commonalities between the debates about Roman law and contemporary international law are

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situated at such a high level of generality that there is only so much we can infer from the Roman law tradition(s). There is a longstanding discussion on the usefulness of Roman law categories for international law. Again, Hersch Lauterpacht made a most important contribution in this regard in his ‘Private Law Sources and Analogy in International Law’ and has left a lasting impact on the doctrine of international law.6 The chapter is shifting back and forth between different notions like aequitas, good faith, and abuse of rights. This mirrors the at times also unclear state of debate in international law today where the relationship between good faith and abuse of rights is intricate and complex.7 Beyond these doctrinal questions, the broader issue is the function of the Roman law analogy that the chapter deploys. Is this itself part of a ‘cynical plot’? We are all accustomed to the aggrandising performative effect that Roman law notions play in the life of international law. If something is really important, give it a Roman name! Jus cogens, obligations erga omnes, pacta sunt servanda—you name it. The carefully phrased chapter on which this contribution comments does, of course, something different. But constructing a Roman law basis for the principle of abuse of rights can of course also be seen as an attempt to tap into ‘the cultural prestige of the ancient world’ and to rely on ‘the technical rules of Roman private law which was perceived to have almost universal validity’.8 Another question arises in this regard, which would also merit further reflection: the authors introduce the Roman legacy of abuse of rights as an attempt to temperate a previous rigidity of the Roman law and its operation. This had much to do with formalism. The relationship between international law and formalism is very complex. Different understandings of formalism exist in more or less peaceful coexistence in the literature. Formal international law is distinguished from ‘informal international lawmaking’.9 A ‘culture of formalism’ is suggested to counter prevailing power structures in the international realm.10 The interplay between formality and informality is studied.11 At the same time, it is noticeable that the formalism of the formal international law can be quite informal itself.12 Take, for instance, the law of treaties, a core of the system of ‘formal international law’. This part of the machinery of international law is characterised by a good deal of flexibility in the first part. States are the ‘masters of the treaties’ and enjoy quite some leeway in shaping the creation, interpretation and application of the commitments they have entered into.13 The necessity to introduce abuse of rights as a

6

Lauterpacht (1927). Cf. Kiss (2008), para. 10. 8 Tuori (2011), p. 1030; on nostalgia and cynicism, see also Koskenniemi (2017), p. 49. 9 Pauwelyn et al. (2012). 10 Koskenniemi (2001), pp. 494–509. 11 Rodiles (2018). 12 d’Aspremont (2012), p. 188. 13 For a treatment of some of these mechanisms, see Nolte (2019). 7

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category to temper rigid formalism might hence not exist to the same extent that Roman law might have at some point called for such a step.

3 Some Concluding Observations My third and final point is the question what to do now? What does the principle of abuse of rights yield for the broader project behind this collective volume? Does it help as a tool to fight the cynicism of international law?14 Should this be the ambition? Or is it ultimately a rhetorical device to unmask international law’s cynicism? And which further routes of inquiry might be fruitful? One way forward might be to differentiate more between different performative roles: what does the principle of abuse rights mean, for instance, for the judge, the advisor, the scholar and the activist?15 A common theme emerging from the contributions to this volume is that we should not essentialise the group of international lawyers and rather distinguish between different professional roles and identities.16 A follow-up problem then is, of course, that many of ‘us’, the international lawyers, wish to play or do play different roles at different times or even simultaneously.17 Is it then cynical to adopt different understandings of the meaning and scope of the principle of abuse of rights in different professional roles? Can one afford to be the idealist activist brandishing abuses of rights by states in one case and play the cool legal advisor or counsel in another case? If we recall again Georg Schwarzenberger, the great unbeliever in the abuse of rights debate, he makes a cogent point why the doctrine of abuse of rights might be unwieldy for the practice of international law. True to his inductive method, he tried to establish in the 1950s whether abuse of rights had a basis in positive international law. He did not find much material that convinced him. The reason for the scarcity of material for an inductive verification of the rule, he wrote, ‘lies in the nature of any contention which is based on the assertion of bad 14

For studies into the functioning of abuse of rights in international investment law as well as in European tax law, see Philipp Janig, ‘Cynicism and Nationality Planning in International Investment Law’, in this volume and Helene Hayden, ‘(New) Ways of Combating Abuse and Circumvention of European Law on the Example of Tax Evasion and Tax Avoidance’, in this volume. For the good faith principle as a tool to fight cynical uses of international law in the field of economic and social rights, see Dominik Steiger, ‘In International Law We Shall Trust—(Even in) The Case of Economic and Social Rights’, in this volume. 15 These categories are analysed with respect to their different degrees of commitment and cynicism in Koskenniemi (2017), pp. 54–65. 16 Apart from Koskenniemi (2017), see also the contributions in d’Aspremont et al. (2017). 17 For an account of one particular trajectory ‘from diplomat to academic activist’, see Aust (2014). For a discussion of the role of activists, courts and judges in countering cynicism, see Daniel R. Quiroga-Villamarín, ‘From Speaking Truth to Power to Speaking Power’s Truth: Transnational Judicial Activism in an Increasingly Illiberal World’, in this volume and the responding comment by Andreas Paulus, ‘From Judicialisation to Politicisation? A Response to Daniel QuirogaVillamarín by an Academic Turned Practitioner’, in this volume.

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faith and abuse of rights on the part of other States. The suggestion of bad faith is highly odious.’18 And further: Even if a State is reasonably convinced of the bad faith of another State, the presumptions in favour of good faith and law-abidingness impose such a heavy burden of proof on any State making such an allegation, that, on rare occasions only, it is likely to choose this line of argument.19

Schwarzenberger was not outrightly dismissive with respect to the principle of abuse of rights. Instead, in conformity with his methodological outlook and scepticism towards grand claims, he could not see it forming part of international law in the 1950s. Yet, he did not preclude it from emerging in the future. With respect to that future, Schwarzenberger had a prognosis to share which should make us think today: ‘The higher degree of international integration on an institutional level, the more scope exists for the application of equitable considerations as the prohibition of abuse of rights.’20 The underlying premise was that abuse of rights would need to be domesticated in order to work as a technical rule of international law. This was only possible, according to Schwarzenberger, when there was a sufficient degree of organisation of international society. At first sight, this may be puzzling. Maybe the principle of abuse of rights is needed to overcome shortages and deficits of the international community, much like Lauterpacht argued? I think that Schwarzenberger has a point here. This is, of course, an unpopular position to take as we are all accustomed to take the side of Lauterpacht.21 But why do so many want to be on Lauterpacht’s side here? Of course, his position resembles the good and progressive side that many of us arguably wish to occupy. The sceptic Schwarzenberger is a much less appealing idol. Yet, falling back on Lauterpacht’s theory of abuse of rights as an element of change and a force for good is somewhat nostalgic, and this nostalgia, I may add, is only exacerbated by the Roman law analogy. Lauterpacht’s ideal can only work as long as we can hold on to the idea of a progressive centre of international law, which defines whose morals will win the day. For quite some time, some international lawyers in Europe and other parts of the ‘Global North’ maybe did no longer openly admit that they wished to project their own morals onto the world. But even if they did not admit as much, they may have harboured the secret conviction that eventually it will still be them who will win the day. Hence, why not rely on an innocent-sounding doctrine of abuse of rights to instil a little bit of progress into the rusty machinery of international law? Today, I would submit, not many of ‘us, the international lawyers’ will know for sure whose morals will win the day in such an operation. Calling too openly for transcending the exclusive positivism of international law through the doctrine of abuse of rights might hence be a classic case of ‘be careful what you wish for’. 18

Schwarzenberger (1956), pp. 152–153. Id., p. 153. 20 Id., p. 179. 21 When dealing with the concept of abuse of rights in my previous work, I was also much more attracted to Lauterpacht’s idealism, see Aust (2011), pp. 69–77. 19

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References Aust, H. P. (2011). Complicity and the law of state responsibility. Cambridge: CUP. Aust, H. P. (2014). From diplomat to academic activist: André Mandelstam and the history of human rights. European Journal of International Law, 25(4), 1105–1121. Byers, M. (2001–2002). Abuse of rights: An old principle, a new age. McGill Law Review, 47(2), 389–431. d’Aspremont, J. (2012). From a pluralization of international to a pluralization of the concept of international law. In J. Pauwelyn, R. Wessel, & J. Wouters (Eds.), Informal international lawmaking (pp. 185–199). Oxford: OUP. d’Aspremont, J., Tarcisio, G., Nollkaemper, A., & Werner, W. G. (Eds.). (2017). International law as a profession. Cambridge: CUP. Eichenhofer, P. (2019). Rechtsmissbrauch. Zu Geschichte und Theorie einer Figur des europäischen Privatrechts. Tübingen: Mohr Siebeck. Guski, R. (2019). Rechtsmissbrauch als Paradoxie: Negative Selbstreferenz und widersprüchliches Handeln im Recht. Tübingen: Mohr Siebeck. Kiss, A. (2008). Abuse of rights. In R. Wolfrum (Ed.), Max Planck Encyclopedia of Public International Law (online ed). Oxford: OUP. Koskenniemi, M. (2001). The gentle civilizer of nations – The rise and fall of international law 1870-1960. Cambridge: CUP. Koskenniemi, M. (2017). Between commitment and cynicism. In J. d’Aspremont, T. Gazzini, A. Nollkaemper, & W. G. Werner (Eds.), International law as a profession (pp. 38–66). Cambridge: CUP. Lauterpacht, H. (1927). Private law sources and analogy in international law. London: Longmans, Green & Co. Lauterpacht, H. (2011). [1933] The Function of Law in the International Community. Oxford: OUP. Nolte, G. (2019). Treaties and their practice – Symptoms of their rise and decline. Leiden: Brill. Pauwelyn, J., Wessel, R., & Wouters, J. (Eds.). (2012). Informal international lawmaking. Oxford: OUP. Rodiles, A. (2018). Coalitions of the willing in international law. Cambridge: CUP. Schlochauer, H. J. (1933). Die Theorie des abus de droit im Völkerrecht. Zeitschrift für Völkerrecht, 17, 373–394. Schwarzenberger, G. (1956). Uses and abuses of the ‘abuse of rights’ in international law. Problems of Public and Private International Law. Transactions of the Grotius Society, 42, 147–179. Taylor, G. D. S. (1972–1973). The content of the rule against abuse of rights in international law. British Yearbook of International Law, 46, 323–352. Tuori, K. (2011). The reception of ancient legal thought in early modern international law. In B. Fassbender & A. Peters (Eds.), The Oxford handbook of the history of international law (pp. 1012–1033). Oxford: OUP.

Helmut Philipp Aust is Professor of Public and International Law at Freie Universität Berlin, Germany.

Cynicism and Nationality Planning in International Investment Law Philipp Janig

Abstract To leverage the possibilities of the international legal framework to their greatest advantage, multinational corporations have long resorted to nationality planning. This involves the purposeful manipulation of the factors determining corporate nationality to benefit from certain advantages, such as international investment protection. Given that this determination generally is based on formal criteria, corporations have much leeway in doing so. While that practice has generally been considered legal and legitimate within international investment law, this contribution explores the matter from the vantage point of cynicism. In doing so, it examines under which circumstances a cynical view of nationality planning might be justifiable and interrelates this with the application of the principle of abuse of rights (or abuse of process) by investment tribunals. Thus, this contribution discusses nationality planning in light of cynicism and how far that might be rectified by applying the principle of abuse of rights.

1 Introduction The system of international investment protection has faced significant (public) criticism in recent years, which has resulted in a flurry of activity aimed at its reform. This criticism was particularly born out of the question who benefits from the system. While the protection of international investment law is limited to foreign investors, there has been a perception that large corporations could de facto always avail themselves thereof, making it a ‘give-away’ to multinationals. This follows from the possibility of corporations to undertake so-called nationality planning, that is, the purposeful manipulation of the factors that determine corporate nationality to benefit from investment protection. As will be seen, this practice might prompt a cynical view on international investment law.

P. Janig (*) Universität der Bundeswehr München, Neubiberg, Germany © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_18

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Following a brief general discussion on nationality planning in international investment law, this contribution examines the practice in light of the notion of ‘cynicism’. Thereafter, it seeks potential responses thereto in positive international law, namely the principle of ‘abuse of rights’ or ‘abuse of process’.1 In that regard, the contribution surveys arbitral jurisprudence that applies the principle in cases involving nationality planning and analyses the factors that tribunals consider to distinguish legitimate nationality planning from abuse.

2 Corporate Nationality and the Practice of Nationality Planning International investment law grants substantive and procedural protection to certain foreign nationals, namely foreign investors. This follows from the international investment agreements (IIAs) establishing the applicable legal framework, most importantly bilateral investment treaties (BITs) as well as investment chapters in multilateral agreements and, on procedural rights, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).2 Accordingly, the jurisdiction ratione personae of investor-state arbitral tribunals is also limited to foreign investors, requiring investors to show that they possess the nationality of the pertinent home state to resort to investment arbitration.3 Within general international law, the determination of nationality of natural persons is an issue in principle governed by domestic law.4 On corporate nationality, and in the context of diplomatic protection,5 the International Court of Justice in Barcelona Traction similarly relied on determinations made under domestic law:

1

These terms are often used interchangeably in arbitral jurisprudence, although they differ insofar as the former relates to substantive rights and the latter to procedural rights. Nevertheless, tribunals consider them as different aspects of the same concept, see PCA, Philip Morris Asia Limited v. The Commonwealth of Australia, PCA Case No. 2012-12, Award on Jurisdiction and Admissibility, 17 December 2015, para. 554; see also ICJ, Immunities and Criminal Proceedings (Equatorial Guinea v. France) Preliminary Objections, Judgment of 6 June 2018, ICJ not yet reported, para. 146 (‘Although the basic concept of an abuse may be the same, the consequences of an abuse of rights or an abuse of process may be different’). 2 See Article 25 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (adopted 18 March 1965, entered 14 October 1966) 575 UNTS 159. 3 McLachlan et al. (2017), para. 5.01. 4 See already Article 1 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws (adopted 13 April 1930, entered into force 1 July 1937) 179 LNTS 89 (‘It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.’); PCIJ, Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion of 7 February 1923, PCIJ Series B No 4, 24. 5 ICJ, Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Rep 1970, 3, para. 38 (‘In this field,

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In allocating corporate entities to States for purposes of diplomatic protection, international law is based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals. The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office.6

These determinative factors concerning corporate nationality—incorporation, seat (siège social) or the nationality of controlling shareholders—have likewise been widely adopted in international investment agreements.7 In addition, certain international investment agreements enshrine further substantive criteria, which inter alia might allow host states to deny protection for investors that have no ‘substantial business activities’ in their home states.8 Nevertheless, what is usually decisive for tribunals, are determinations under the domestic law of the (alleged) state of nationality. As a result, tribunals generally apply a test that is ‘formalistic in the sense that . . . a juridical person’s claim of nationality will be determined by reference to formal incorporation under the law of the home State’.9 This focus on formal criteria, alongside the arguably moderate conditions set by substantive criteria, makes it comparatively easy for corporations to organise and change their nationality to enjoy the protection of international investment agreements. While this practice is referred to as ‘nationality planning’ for this contribution, it has also become known under various other names, including ‘treaty shopping’, ‘treaty planning’ or ‘corporate manoeuvring’.10 The landmark case in this context is Tokios Tokelés v. Ukraine, in which the claimant was a corporation under the laws of Lithuania. Its ownership was almost exclusively and the management predominantly made up of Ukrainian nationals. Ukraine disputed the nationality of Tokios Tokelés on the basis that it was controlled

international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field. . . . international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law.’). 6 Id., para. 70. 7 A company will generally also have a seat in the country where it is incorporated, given that most states require a registered office for a company to be incorporated, see commentary to Article 9, para. 3 in ILC Draft Articles on Diplomatic Protection with commentaries (2006) A/61/10, at 53; McLachlan et al. (2017), para. 5.27; see generally id., paras. 5.02, 5.66; Dolzer and Schreuer (2012), p. 47. 8 These are so-called ‘denial of benefit clauses’, see Hoffmann (2015), p. 598; see also ICSID, Tenaris S.A. and Talta - Trading e Marketing Sociedade Unipessoal Lda. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/26, Award, 29 January 2016, para. 165 (finding that the ‘the interpretation of the terms ‘siège social’ or ‘sede” in the Portugal-Venezuela BIT ‘is a matter of international, not domestic, law’). 9 McLachlan et al. (2017), para. 5.12, see also para. 5.06. 10 Baumgartner (2016), pp. 7–8, 32.

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by Ukrainian nationals, requesting the tribunal to pierce the corporate veil.11 Pursuant to this doctrine developed in domestic law, the corporation is denied its independent legal personality, attributing its conduct and assets to the corporation’s shareholders. However, the majority of the tribunal reaffirmed the company's Lithuanian nationality based on its incorporation and seat in Lithuania, emphasising that ‘none of the Claimant’s conduct with respect to its status as an entity of Lithuania constitutes an abuse of legal personality’ and that [t]he Claimant manifestly did not create Tokios Tokelės for the purpose of gaining access to ICSID arbitration under the BIT against Ukraine, as the enterprise was founded six years before the BIT between Ukraine and Lithuania entered into force. Indeed, there is no evidence in the record that the Claimant used its formal legal nationality for any improper purpose.12

The tribunal’s findings thus reaffirmed the possibility already outlined in Barcelona Traction of exceptionally setting aside the nationality of the corporation—piercing the corporate veil—and considering the nationality of the shareholders in certain cases of abuse.13 Outside of these exceptional circumstances, however, the tribunal considered ‘nationality planning’ permissible. This position has been shared by investment tribunals generally, which view the practice to be in principle legal and legitimate.14 The main holdings of Tokios Tokelés were reaffirmed by numerous other tribunals,15 also in the context of corporate restructuring after the establishment of an investment.16 This formalistic approach follows particularly from the abovementioned language of the underlying treaties and the apparent unwillingness of treaty parties to significantly change those definitions.17 As a result, nationality planning has become ‘a standard feature of diligent management’.18

11

ICSID, Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, 29 April 2004, paras. 21–23. 12 Id., para. 56. 13 Barcelona Traction, supra note 5, paras. 55–58. 14 McLachlan et al. (2017), paras. 5.16, 5.159. 15 See e.g. UNCITRAL, CME Czech Republic B.V. v. Czech Republic, Partial Award, 13 September 2001, para. 419 (on parallel arbitrations of a corporate investor and its owner pertaining to the same dispute). 16 See ICSID, Aguas del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent’s Objections to Jurisdiction, 21 October 2005. 17 See UNCITRAL, Saluka Investments B.V. v Czech Republic, Partial Award, 17 March 2006, para. 241, see also para. 240 (‘The Tribunal has some sympathy for the argument that a company which has no real connection with a State party to a BIT, and which is in reality a mere shell company controlled by another company which is not constituted under the laws of that State, should not be entitled to invoke the provisions of that treaty.’). 18 Schreuer (2012), p. 19.

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3 The Notion of ‘Cynicism’ and Its Relevance for Nationality Planning This section explores to what extent nationality planning may be considered ‘cynical’. While such an argument is undoubtedly not determinative for resolving any matter of law as such, it nevertheless might provide a useful conceptual frame when concerned with the application of pertinent positive rules of law. When providing a ‘modern definition of cynicism’, Gerry Simpson argued that it ‘is to know the gap between one’s abstract commitments and imbedded practices and to go on as if nothing has changed’.19 Thus, cynicism denotes the discrepancy between one’s action and one’s words. Similarly, in the context of (international) law, in the introduction to this volume, the editors consider the modern understanding of cynicism as referring to a strategy that furthers ‘one’s interest by pragmatic or . . . tactical behaviour. . . [that] refuses to publicly acknowledge the disregard for ethical idealism and the law, which it in fact practises’. Thus, cynicism ‘denotes uses and abuses of international law that are meant to further the one-sided interests of certain actors’.20 In the present context, it appears beyond dispute that the practice of nationality planning primarily furthers the individual interests of corporations. These seek to minimise risks to their investments by achieving the most favourable available protection of international investment agreements and gaining access to investorstate arbitration. However, in most cases, corporations also do not purport to act for any other reasons than their own self-interest.21 Given that their own actions generally align with their declared motivations, it would be difficult to characterise that conduct as cynical in light of the definitions above. A more colloquial understanding of cynicism however focuses not on the actor but the observer, who perceives others to act for ulterior motives.22 This cynicism may likewise question the operation of systems, i.e. consider that systems that are

19

See Simpson (2019) at minute 26:25 in the video. Björnstjern Baade et al., ‘How (Not) to Be Cynical’, in this volume. 21 In some cases, discussed infra in the context of the ‘motivation’ criterion when applying the principle of abuse of process, claimants argued that their corporate restructuring was taken for different reasons, which were nevertheless out of self-interest. However, such arguments are arguably the result of earlier jurisprudence on the matter. 22 This understanding appears to be generally reflected in dictionaries, see https://en.wiktionary.org/ wiki/cynicism. Accessed 10 January 2020 (‘cynicism . . . 2. . . . an emotion of jaded negativity, or a general distrust of the integrity or professed motives of other people. Cynicism can manifest itself by frustration, disillusionment and distrust in regard to organizations, authorities and other aspects of society, often due to previous bad experience.’); see also http://www.merriam-webster.com/ dictionary/cynical. Accessed 7 January 2020 (‘cynical: 1. having or showing the attitude or temper of a cynic: such as . . . b: based on or reflecting a belief that human conduct is motivated primarily by self-interest’); https://lexico.com/definition/cynicism. Accessed 8 January 2020 (cynic: 1 A person who believes that people are motivated purely by self-interest rather than acting for honourable or unselfish reasons.). 20

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purported to be established for some common interest in fact only lead to the furtherance of specific individual or group interests. Would it thus be justified for an external observer to adopt a cynical attitude towards nationality planning in investment law? This raises the question for which end the international investment law system was established, and whether it purportedly serves a common interest. The ‘traditional’ narrative posits that international investment law was established as a means for the economic development of developing (capital-importing) countries.23 Thus, in context of the ICSID Convention, the tribunal in Amco v. Indonesia considered that the Convention is aimed to protect, to the same extent and with the same vigour the investor and the host State, not forgetting that to protect investments is to protect the general interest of development and of developing countries.24

While recent doctrinal thought partly abandons that argument, instead considering the system an instrument to safeguard the rule of law concerning foreign investors,25 the narrative remains widespread in both literature and jurisprudence.26 That traditional narrative has been harshly criticised by one school of thought, which sees the system as a neo-colonial enterprise. Sornarajah for instances argues that ‘[i] nvestment treaty law lied when it stated that it is fashioned to promote economic development in the poorer world’.27 Following that view, the establishment of international investment law as such was a cynical endeavour. As a result, nationality planning arguably were not problematic in and of itself, but rather exacerbates the already existing gap between the pretences and realities of international investment law. However, those actors that establish and uphold the system largely continue to employ the traditional narrative to justify the existence of the system.28 Thus, this contributions seeks to explore the cynicism in nationality planning in relation to the argument that international investment law serves the economic development of host states. This implies that foreign investors are specifically granted special rights with

23

Schreuer (2011), pp. 72–73. ICSID, Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on Jurisdiction, 25 September 1983, para. 23. 25 See e.g. Schill (2015); see also International Law Associations (2018). 26 See also Schreuer et al. (2009), Preamble, paras. 11–14; ICSID, Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9, Decision on Jurisdiction, 22 February 2006, para. 80. 27 Sornarajah (2015), pp. 48–51 (accusing the system of being cynical, arguing that ‘[i]nvestment treaty law lied when it stated that it is fashioned to promote economic development in the poorer world’); see generally Miles (2013). 28 For this contribution, it is not material whether that argument is correct, i.e. whether IIAs have an actual positive effect on the economic development of host states; see also Roberts and St John (2020) (terming a number of related arguments ‘plausible folk theories’); see also Bonnitcha et al. (2017), pp. 155–180. 24

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a view of attracting an inflow of (foreign) private capital.29 In light of this, the formalistic approach to corporate nationality explained above has been criticised in scholarly writing,30 including in the dissenting opinion by Chairman Weil in Tokios Tokelés. He argued that allowing nationals of the host state to funnel its capital through a foreign corporation to gain treaty protection would disturb that system of international investment protection.31 It may be questioned whether that critique fully captures the matter: if the aim of investment law is to attract additional capital for economic development, that capital’s origin is arguably extraneous to achieving that goal. A cynical view of nationality planning might be appropriate, where it allows for the protection of investments that could not even theoretically (have) lead to any economic contribution in the host state. If one accepts the presumption that a business activity which constitutes an ‘investment’ under the applicable international investment agreement contributes to the economic development of the host state, this question again relates to the motivation of investors. However, if the attempt of a corporation to gain investment protection is entirely decoupled from any decision on the establishment or continued operation of the investment, this investment could arguably not have been motivated by the existence of an international investment agreement. This includes circumstances in which a corporation does not seek protection to offset the general risk associated with investing in a foreign country, but rather ad hoc in view of a specific dispute. As will be seen, the principle of abuse of rights (or abuse of process) might apply to such cases, particularly where disputes that are in essence domestic are ‘internationalised’ through corporate restructuring.

4 The Principle of ‘Abuse of Process’ as an Instrument to Curb Nationality Planning 4.1

Overview of ‘Abuse of Process’ in Investment Arbitration

The first case in which an arbitral tribunal dismissed an entire claim based on ‘abuse of rights’ was Phoenix Action v. Czech Republic in 2009.32 The claimant in this case was an Israeli corporation, held by a Czech national, arguing that its rights were violated due to lengthy domestic legal dispute involving two Czech companies it controlled. These two companies, however, were acquired by Phoenix Action when

29 PCA, ST-AD GmbH v. Republic of Bulgaria, UNCITRAL, PCA Case No. 2011-06, Award on Jurisdiction, 18 July 2013, para. 408; cf ICSID, David R. Aven and Others v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Award, 18 September 2018, para. 226. 30 See generally on policy concerns on treaty shopping Baumgartner (2016), pp. 39–64. 31 ICSID, Tokios Tokelés v. Ukraine, ICSID Case No ARB/02/18, Dissenting Opinion of Chairman Prosper Weil, 29 April 2004, para. 30. 32 ICSID, Phoenix Action Ltd v. Czech Republic, ICSID Case No ARB/06/5, Award, 15 April 2009.

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the domestic proceedings were already ongoing, and all pertinent transactions occurred within the family of the sole shareholder of Phoenix Action. The tribunal considered that for the determination of an ‘investment’ under Article 25(1) ISCID Convention it must consider, as an additional requirement,33 whether the investment was made in good faith.34 After finding that all other criteria for the existence of an investment were fulfilled, the tribunal turned to good faith. Based on various considerations—including that the proceedings were already ongoing, that the dispute was notified only two months after the change in nationality and that the claimant never intended to perform any economic activities in the host state35—the tribunal concluded that the investment was made ‘for the sole purpose of bringing international litigation’.36 It found that the claimant created ‘a legal fiction’ to gain access to ICSID arbitration, which constituted an abuse of rights (a ‘détournement de procédure’). As a result, the ‘initiation and pursuit of this arbitration is an abuse of the system of international ICSID investment arbitration’37 and the tribunal lacked jurisdiction ratione materiae.38 While the specific reasoning of the Phoenix tribunal was criticised—namely its finding that good faith constituted part of the definition of an ‘investment’ under Article 25(1) ICSID Convention39— subsequent cases applied ‘abuse of rights’ or ‘abuse of process’ in comparable circumstances. In these cases, the principle was generally conceptualised as a separate objection that ‘exists independently of [the] specific language . . . in the Treaty’.40 The objection is almost exclusively developed in arbitral case law, allowing respondent states to invoke it in any case, irrespective of the underlying international investment agreement.41 On sources, tribunals invoked general principles of law within the meaning of Article 38(1)(c) ICJ Statute—abuse of rights thus constitutes an expression of good faith42 or a principle in 33 According to the tribunal, in addition to the investment having been made in conformity with the laws of the host state, as well as the Salini criteria, see ICSID, Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 31 July 2001, 42 ILM 609 (2003), para. 52. 34 Phoenix Action, supra note 32, paras. 83, 100. 35 Id., paras. 136–140. 36 Id., para. 142. 37 Id., para. 143–144. 38 Id., paras. 145. 39 ICSID, Metal-Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award, 4 October 2013, para. 217. 40 ICSID, Gustav F W Hamester GmbH & Co KG v. Republic of Ghana, ICSID Case No. ARB/07/ 24, Award, 18 June 2010, para. 124; Ascensio (2014), p. 779. 41 See also the contribution by Helene Hayden, ‘(New) Ways of Combating Abuse and Circumvention of European Law on the Example of Tax Evasion and Tax Avoidance’, in this volume. 42 ICSID, Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para. 646; ICSID, Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Award, 6 December 2016, para. 492; similarly ICSID, Mobil Corporation, Venezuela Holdings, B.V., et al. v. Bolivarian Republic of Venezuela,

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its own right.43 At any rate, the principle of abuse of rights is the ‘application of [the principle of good faith] to the exercise of rights’.44 The exercise of rights is considered abusive when it disproportionately favours the right-holder in light of a balance of interest45 or when a right is exercised ‘for a purpose . . . different from that for which that right was created’.46 The principle thus in effect may allow balancing competing interests of the beneficiary of a right against the interests of the obliged party or the community as a whole. Within international investment arbitration, following Phoenix, the abuse of rights principle found application in circumstances of corporate restructuring for gaining access to investor-state arbitration, when a dispute had already arisen or was foreseeable.47 When determining which (procedural) right the investor might exercise abusively in that context tribunals have resorted to rather broad terms. Generally, tribunals might point to the acquisition of nationality and/or to the initiation of a claim. The Phoenix tribunal invoked both and held that the abuse consisted ‘in the Claimant’s creation of a legal fiction in order to gain access to an international arbitration procedure’48 and thus the ‘Claimant’s initiation and pursuit of this arbitration is an abuse of international ICSID investment arbitration’.49 The latter statement was repeated in ST-AD.50 In Gremcitel, the tribunal explicitly held that the ‘corporate restructuring . . . constitutes an abuse of process’.51 Other tribunals similarly pointed to an ‘abuse . . . of the investment treaty system by attempting to

ICSID Case No. ARB/07/27, Decision on Jurisdiction, 10 June 2010, paras. 169–176; ICSID, Pac Rim Cayman LLC v. Republic of El Savador, ICSID Case No. ARB/09/12, Decision on Jurisdiction, 1 June 2012, para. 2.44. For how the prohibition of abuse of rights might be based on the general principle of good faith, see the contribution by Andrea Faraci and Luigi Lonardo, ‘Abuse of Right in International Law: A Roman Law Analogy’, in this volume. 43 ICSID, Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Award, 30 June 2009, para. 145; UNCITRAL, The Renco Group Inc. v. Republic of Peru [I], UNCITRAL Case No. UNCT/13/1, Partial Award on Jurisdiction, 15 July 2016, para. 175; see also the rather extensive comparative analysis in Mobil, supra note 42, paras. 169–175. 44 Cheng (1953), p. 121. 45 Ascensio (2014), pp. 764–765. 46 Saipem, supra note 43, para. 160; Renco Group, supra note 43, para. 176 (citing Saipem); see also ICSID, Orascom TMT Investments S.à r.l. v. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Final Award, 31 May 2017, para. 540; PCA, Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, PCA Case No. 2009-23, Second Partial Award on Track II, 30 August 2018, para. 7.87 (citing Orascom); Ascensio (2014), pp. 764–765; see generally Cheng (1953), pp. 121–136. 47 Orascom, supra note 46, para. 540 (going on to apply the principle to multiple claims for the same dispute). 48 Phoenix Action, supra note 32, para. 143. 49 Id., para. 144. 50 ST-AD, supra note 29, para. 423. 51 ICSID, Renée Rose Levy and Gremcitel S.A. v. Republic of Peru, ICSID Case No. ARB/11/17, Award, 9 January 2015, paras. 182, 195.

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create artificial international jurisdiction’52 or held that ‘[a]n investment will not be protected if its creation itself constitutes a misuse of the system of international investment protection under the ICSID Convention’.53 The most precise and appropriate formulation was arguably made by the Philip Morris tribunal, which found that ‘the initiation of a treaty-based investor-State arbitration constitutes an abuse of rights’.54 Thus, the abused right in question is the procedural right to initiate arbitral proceedings against the state.55 If one were to consider the corporate restructuring or the acquisition of nationality themselves to be abusive, this would imply a broader application of the principle, as investors consequently could not benefit from their (new) nationality. However, as will be seen, tribunals allow investors to invoke their nationality with regard to non-foreseeable disputes arising after restructuring.

4.2

Criteria in Applying ‘Abuse of Process’ to Nationality Planning

The determination of whether the initiation of proceedings following corporate restructuring will constitute an abuse of rights or abuse of process is made on a case-by-case basis considering all circumstances.56 Nevertheless, arbitral practice has over time consolidated around several factors that are typically considered.57 The two core criteria are the ‘existence’ or ‘foreseeability of the dispute’ and the ‘motivation for restructuring’,58 with a number of ancillary factors also taken into account. On the first criterion, several earlier decisions applied abuse of process to disputes that (essentially) already existed at the time corporate restructuring. While later

52

ICSID, Transglobal Green Energy, LLC and Transglobal Green Energy de Panama, S.A. v. The Republic of Panama, ICSID Case No. ARB/13/28, para. 118. 53 Hamester, supra note 41, para. 124. 54 Philip Morris, supra note 1, para. 554. 55 Watson and Brebner (2018), p. 303 fn. 4. 56 See Mobil, supra note 42, para. 177; ICSID, Tidewater Inc., Tidewater Investment SRL, Tidewater Caribe, C.A., et al. v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/5, Decision on Jurisdiction, 8 February 2013, para. 147; Gremcitel, supra note 51, para. 186 (citing Mobil), para. 193 (‘a global evaluation of the facts’); Transglobal, supra note 52, para. 103; SCC, Isolux Netherlands, BV v. Kingdom of Spain, SCC Case V2013/153, Final Award, 17 July 2016, para. 698. 57 Baumgartner (2016), pp. 222 et seq.; see also Transglobal, supra note 52, para. 103 (‘tribunals have considered all the circumstances of the case, including, for instance, the timing of the purported investment, the timing of the claim, the substance of the transaction, the true nature of the operation, and the degree of foreseeability of the governmental action at the time of restructuring’ [references omitted]). 58 Watson and Brebner (2018), p. 318.

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tribunals likewise dismissed such claims, they often have found it more appropriate to construe it as an issue of jurisdiction ratione temporis.59 These differences arguably arise from the difficulty to determine a precise point in time in certain cases: while it might be comparatively easy in case of a specific measure (such as an act legislation, see Philip Morris), it might be considerably more difficult in ongoing matters (such as domestic court proceedings, see Phoenix and Transglobal).60 The arguably more fascinating issue in the context of the first criterion is the application of abuse of process to disputes that have not yet arisen at the time of restructuring but were foreseeable. The Pac Rim tribunal found that there will ordinarily be an abuse of process, if the claimant can foresee ‘a specific future dispute as a very high probability and not merely as a possible controversy’.61 The tribunal in Philip Morris found that that is the case ‘when there is a reasonable prospect . . . that a measure which may give rise to a treaty claim will materialise’.62 In practice, this has concerned circumstances in which a state’s willingness to enact or implement a certain measure is made clear in public announcements, while it still has a certain discretion whether to actually follow through (objective factors) or where that willingness is otherwise known to the investor (subjective factors). In Philip Morris, the enactment of plain packaging legislation was foreseeable, as the government had announced its intention to push for the legislation—to which Philip Morris objected— although the government’s commitment and the necessary majority in parliament were not entirely clear throughout the process.63 In Tidewater, the tribunal considered an expropriation just two months after restructuring not to be foreseeable, as the pertinent bill ‘was introduced without warning and passed into law over just three days’ and public statements by the government at the time of restructuring indicated that it would seek a ‘negotiated contractual solution’ rather than expropriation.64 The Gambrinus tribunal considered both objective and subjective elements when examining the foreseeability of an expropriation. While Venezuela took a number of regulatory and legislative steps that showed its willingness to consolidate the petrochemical sector, these did ‘not point to just one direction, namely the serious threat of imminent expropriation’.65 The tribunal considered it not foreseeable, as there were ongoing negotiations with the pertinent state-owned corporation that pointed towards ‘an amicable agreement’, and as the investment had been upgraded by a rating agency.66 The Gremcitel tribunal focused

59

Fukunaga (2018), pp. 201–202. See in more detail infra. 61 Pac Rim, supra note 42, para. 2.99; see also, verbatim, Arbitrator Stern in ICSID, Alapli Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13, Excerpts of Award, para. 403. 62 Philip Morris, supra note 1, para. 545; the tribunal based itself on Tidewater, supra note 56, paras. 145 (‘could reasonably have been foreseen’), 197 (‘reasonably foreseeable’). 63 Philip Morris, supra note 1, paras. 555–569. 64 Tidewater, supra note 56, paras. 195–196. 65 ICSID, Gambrinus, Corp. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/31, Award, 15 June 2015, paras. 177–186. 66 Id., paras. 187–196. 60

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on subjective elements exclusively, namely whether the report motivating the subsequent government action was known to the claimant.67 Thus, it appears to be sufficient for respondent states to either show that the dispute was foreseeable for a reasonable investor or actually foreseen by the specific investor in question.68 On the relevant time when foreseeability must be given, tribunals refer to the dates on which the internal decision for restructuring was taken, on which it commenced and when it was concluded. For most tribunals, the decisive date appears to be the latter.69 As already indicated above, this criterion requires the foreseeability of a specific dispute, rather than a generally deteriorating business climate.70 In Isolux, the tribunal was concerned with a dispute arising out of legislation introducing new taxes for energy companies,71 passed six months after restructuring was decided on and two months after it was performed. It considered the dispute not to be foreseeable,72 although Spain has generally announced reforms for the energy sector out of budgetary reasons and has already taken other legislative steps in that regard before restructuring.73 On the second criterion—‘motivation for restructuring’— restructuring must be undertaken with the purpose to gain access to investor-state arbitration where that was not possible prior, either because the corporation was domestic (such as Phoenix, ST-AD) or a foreign investor was not protected by any investment agreement (such as Philip Morris). An exception thereto is Cervin Investissements, in which the investor had already been protected by another bilateral investment treaty before restructuring, which also allowed for ICSID arbitration (see further below).74

67

Gremcitel, supra note 51, paras. 188–190. Watson/Brebner argue that a dispute must be ‘foreseen’ rather than ‘foreseeable’ for the second criterion—motivation—to be fulfilled. However, tribunals do not require states to show subjective knowledge, but presume that a dispute that is foreseeable in abstract was also foreseen by the investor. See Watson and Brebner (2018), p. 319 fn. 143; see further Gremcitel, supra note 51, para. 187 (‘the closer the acquisition of the investment is to the act giving rise to the dispute, the higher the degree of foreseeability will normally be’). 69 Watson and Brebner (2018), pp. 325–326 (arguing for a flexible approach); see, however, Tidewater, supra note 56, paras. 194–195 (the seizure of an oil rig belonging to an unrelated company on month after commencement of restructuring and in two months before its conclusion was immaterial to foreseeability, as it ‘post-dated’ the claimant’s decision to restructure). 70 See ICSID, ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on Jurisdiction and Merits, 3 September 2013, paras. 277–280; Tidewater, supra note 56, para. 195. Both cases relate to measures taken by the Venezuelan government, including expropriation, against investors in the oil sector, however with the latter case indicating that the seizure of an oilrig belonging to an unrelated company might be relevant. 71 Isolux, supra note 56, paras. 125–126. 72 Id., paras. 696, 700–701. 73 Id., paras. 117 et seq. 74 ICSID, Cervin Investissements S.A. and Rhone Investissements S.A. v. Republic of Costa Rica, ICSID Case No. ARB/13/2, Decision on Jurisdiction, 15 December 2014, para. 297. 68

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The relevance of the criterion appears not entirely clear.75 As indicated above, ‘motivation’ by itself is unproblematic. Corporate restructuring with the sole aim of seeking investment protection is generally immaterial for jurisdiction over potential future disputes,76 as ‘[t]o structure an investment with the aim to seek protection of a bilateral investment treaty is not per se in breach of the good faith expected by an investor’.77 The issue of ‘motivation’ thus only becomes relevant if a tribunal considers the dispute in question to be at least foreseeable.78 Arbitral jurisprudence suggests that the finding of foreseeability also creates a rebuttable presumption that corporate restructuring was motivated by gaining access to investor-state arbitration.79 This is indicated by the finding of the Gremcitel tribunal that the claimant could not show any rationale other than gaining access to protection for the transfer of shares to the original owner’s daughter, a French national.80 Indeed, there appears to be no instance in which a tribunal has found a dispute to be ‘foreseeable’, but considered restructuring not be abusive due the lack of ‘motivation’.81 Connected therewith is the question of the threshold required, i.e. whether gaining access must be the ‘sole purpose’,82 the ‘main purpose’83 or only one of the purposes of restructuring.84 In particular, more recent cases have applied a more stringent standard for investors.85 At any rate, in cases in which claimants pointed to

75

Watson and Brebner (2018), pp. 318–319. Philip Morris, supra note 1, paras. 540–544 (citing Tidewater, Mobil, Gremcitel and Aguas del Tunari); see also ConocoPhillips, supra note 70, para. 279. 77 ICSID, Mera Investment Fund Limited v. Republic of Serbia, ICSID Case No. ARB/17/2, Decision on Jurisdiction, 30 November 2018, para. 153. 78 On the issue of pre-existing disputes, see also infra. 79 See also Watson and Brebner (2018), pp. 320 fn. 148 (noting that this is the approach apparently taken by Philip Morris). 80 Gremcitel, supra note 51, para. 191. 81 The arguable exception being Cervin Investissements, discussed below. 82 Phoenix Action, supra note 32, para. 142; Mobil, supra note 42, para. 205 (‘only in order to gain jurisdiction’); Gremcitel, supra note 51, para. 191 (‘only purpose’); Isolux, supra note 56, para. 696; Cervin Investissements, supra note 73, para. 292; see also David R. Aven, supra note 29, para. 242; cf ST-AD, supra note 29, para. 423 (‘sole purpose’). 83 Mobil, supra note 42, para. 190 (‘the main, if not the sole purpose’); Pac Rim, supra note 42, para. 2.42 (citing Mobil, also ‘one of the principal purposes’); Philip Morris, supra note 1, para. 584 (‘the main and determinative, if not sole, reason for the restructuring’); ST-AD, supra note 29, para. 415 (‘the main purpose’), para. 421 (‘the essential purpose’); Arbitrator Stern in Alapli, supra note 61, para. 390 (‘main purpose’). 84 Cf. ICSID, Lao Holdings N.V. v. Lao People’s Democratic Republic, ICSID Case No. ARB(AF)/ 12/6, Decision on Jurisdiction, 21 February 2014, para. 70 (requiring that restructuring is made ‘to gain jurisdiction under an international treaty’); see, similarly, Transglobal, supra note 52, para. 188. 85 Baumgartner (2016), p. 227. 76

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different rationales, such as alleged tax or other business advantages, tribunals generally have disregarded their relevance.86 An exception to these remarks is Cervin Investissements, in which the tribunal required the respondent state to show that the sole purpose of restructuring was to gain access to arbitration under the applicable bilateral investment treaty, and found general references of the claimant regarding tax and finance reasons to be sufficient.87 However, this might be explained by the specific circumstances of the case. In contrast to other cases, the claimant already had access to ICSID jurisdiction under another bilateral investment treaty prior to restructuring, which provided for comparable substantive protection.88 The tribunal therefore found it perfectly reasonable that other motivations justified restructuring, which did not lead to an undue procedural advantage for the claimant.89 While the findings of the Cervin Investissements tribunal are arguably not applicable to the other cases discussed here,90 it remains to be seen how similar restructuring efforts to achieve more favourable treaty protection are to be treated.91 Another open issue is whether the ‘motivation’ test is considered an objective or subjective standard.92 The Philip Morris tribunal explicitly held that this is ‘subject to an objective test’ and does not require showing bad faith on behalf of the claimant.93 In contrast, the Renée Rose Levy tribunal rejected the argument as ‘the Respondent did not succeed in proving the alleged bad faith of the Claimant and it is a well-known and accepted fact that bad faith cannot be presumed’.94 In their determination, tribunals based themselves on various indicators, including ‘the timing of the claim’ soon after the change in nationality.95 In addition, there are number of ancillary factors considered by tribunals, which might collectively be referred to as the ‘expectation to undertake regular business operations’.96 These factors generally pertain to the transaction effecting the change

86

Tidewater, supra note 56, para. 183; Philip Morris, supra note 1, para. 584. Cervin Investissements, supra note 74, paras. 294–296. 88 Id., paras. 297, 309–310. 89 Id., paras. 298, 308. 90 See, however, Baumgartner (2016), p. 227. 91 At any rate, the likelihood of such cases appears low, insofar as the original agreement entailed a provision providing for Most Favored Nation Treatment (MFN). The question might become relevant, where the original agreement either had no MFN clause or was limited to substantive standards, without the possibility to bring claims before an arbitral tribunal. That constellation, however, appears unlikely to occur. 92 Watson and Brebner (2018), pp. 319–320. 93 Philip Morris, supra note 1, para. 539; see similarly Tidewater, supra note 56, para. 150 (‘objective purpose’). 94 ICSID, Renée Rose Levy de Levi v. Republic of Peru, ICSID Case No. ARB/10/17, Award, 26 February 2014, para. 153. 95 Phoenix Action, supra note 32, para. 138; Cervin Investissements, supra note 74, para. 300 (noting that this was not decisive); see also Watson and Brebner (2018), pp. 319–320. 96 See also the discussion of other factors in Watson and Brebner (2018), pp. 328–329. 87

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in nationality and whether the claimant appears to initiate or continues business activities thereafter.97 While these are not necessarily congruent with the criteria explained above, they might shed light on both the ‘foreseeability’ and ‘motivation’. Tribunals addressed the terms of the underlying transaction (particularly the price)98 and the relationship between the different actors involved.99 Following restructuring, tribunals particularly pointed to the (lack of) continued investment of funds100 and other factors indicating the willingness to continue business operations.101

5 Conclusion The usefulness of ‘cynicism’ as a conceptual frame is arguably limited, but nevertheless appears of interest in the context of abuse of rights or abuse of process. As a general principle of law, it exists independently of the applicable international investment agreement and has been largely developed in arbitral jurisprudence. Its application might thus be seen as a prime example of investment tribunals resorting to general international law, while at the same time contributing to the further development of the legal principles they apply. In the context of nationality planning, this recourse has allowed tribunals to address perceived shortcomings of the language of international investment agreements, namely the determination of corporate nationality (solely or largely) based on formal criteria. The considerations invoked by tribunals are, however, not foreign to the investment law system as such: rather, they seek to ‘avoid consequences unforeseen by their drafters and at odds with the very purposes underlying the conclusion of those treaties’.102 In particular, investor-state arbitration should not be used to litigate domestic disputes. Thus, these considerations follow from one of the core tenets of the overall system—that it is limited to foreign investors. While the application of abuse of process does not generally prevent that nationals of the host state 97

See also Cervin Investissements, supra note 74, paras. 301–302 (considering the attitude of the respondent state towards the investor following restructuring). 98 Transglobal, supra note 52, para. 103; Cervin Investissements, supra note 74, para. 299. 99 See Phoenix Action, supra note 32, para. 139 (discussing the substance of the transaction, namely that all transactions occurred within the same family); see also Renée Rose Levy, supra note 94, para. 154 (where the lack of payment of a price was considered unproblematic as it occurred within the same family). 100 See e.g. ConocoPhillips, supra note 70, para. 280 (finding, concerning additional investments of more than USD 400 million, that ‘this continued substantial involvement in the development and operation of the projects is evidence telling strongly against any finding of treaty abuse’). 101 Tidewater, supra note 56, para. 194 (noting, in the context of foreseeability, the continued investment of funds, bids for new business and negotiations for extension of contracts); see also, arguably in the context of motivation, Phoenix Action, supra note 32, para. 140 (examining the ‘true nature of the operation’ and finding that ‘[t]here are strong indicia that no economic activity in the market place was either performed or even intended by Phoenix’). 102 Orascom, supra note 46, para. 547.

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(or third-party nationals) may ultimately benefit from the investment law framework, it may curb especially unwanted outgrowths of nationality planning. In particular, it allows the prevention of ‘cynical’ appeals to investment arbitration, in which corporations seek protection of treaties ad hoc, without even theoretically having provided for any additional investments. On a broader point, the application of the abuse of process principle to foreseeable disputes also protects public decision-making processes of states. Indeed this appears especially relevant for democratic states, which, as the Philip Morris tribunal has pointed out, ‘often have long legislative processes involving consultations with a variety of stakeholders’.103 Granting corporations the liberty to use that time for corporate manoeuvring to obtain treaty protection and subsequently bring claims against states would in effect endanger these democratic processes. As a result, states would have to make the uncomfortable calculation whether to be transparent in their regulatory work—thus potentially increasing the likelihood of claims—or whether to keep them confidential—thus potentially weakening their position on the merits.104

References Ascensio, H. (2014). Abuse of process in international investment arbitration. Chinese Journal of International Law, 13(4), 763–785. Baumgartner, J. (2016). Treaty shopping in international investment law. Oxford: OUP. Bonnitcha, J., Poulsen, L. N. S., & Waibel, M. (2017). The political economy of the investment treaty regime. Oxford: OUP. Cheng, B. (1953). General principles of law as applied by international courts and tribunals. London: Stephens & Sons. Dolzer, R., & Schreuer, C. (2012). Principles of international investment law (2nd ed.). Oxford: OUP. Fukunaga, Y. (2018). Abuse of process under international law and investment arbitration. ICSID Review, 33(1), 181–211. Hoffmann, A. K. (2015). Denial of benefits. In M. Bungenberg, J. Griebel, S. Hobe, & A. Reinisch (Eds.), International investment law: A handbook (pp. 598–613). München, Oxford, BadenBaden: C.H. Beck, Hart, Nomos. International Law Associations. (2018). Sydney Conference (2018): Rule of Law and International Investment Law. Retrieved 16 February 2020, from http://ila.vettoreweb.com/Storage/Down load.aspx?DbStorageId¼11583&StorageFileGuid¼3f5163e1-f0f3-4dbe-8c44-9602d84af8b8 McLachlan, C., Shore, L., & Weiniger, M. (2017). International investment arbitration: Substantive principles (2nd ed.). Oxford: OUP. Miles, K. (2013). The origins of international investment law: Empire, environment and the safeguarding of capital. Cambridge: CUP.

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See Philip Morris, supra note 1, para. 567. This might be the case insofar as treaty standards require states to maintain a ‘stable legal framework’.

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Roberts, A., & St John, T. (2020). UNCITRAL and ISDS Reform: Plausible Folk Theories. EJIL: Talk! Retrieved 16 February 2020, from www.ejiltalk.org/uncitral-and-isds-reform-plausiblefolk-theories/ Schill, S. W. (2015). International investment law and the rule of law. In J. Jowell, J. C. Thomas, & S. J. van Zyl (Eds.), Rule of law symposium 2014: The importance of the rule of law in promoting development (pp. 81–102). Singapore: Academy Publishing. Schreuer, C. (2011). International investment law and general international law – From clinical isolation to systemic integration? In R. Hofmann & C. J. Tams (Eds.), International investment law and general international law: From clinical isolation to systemic integration? (pp. 71–74). Baden-Baden: Nomos. Schreuer, C. (2012). Nationality planning. In A. W. Rovine (Ed.), Contemporary issues in international arbitration and mediation: The Fordham papers (pp. 15–27). Leiden: Martinus Nijhoff. Schreuer, C. H., Malintoppi, L., Reinisch, A., & Sinclair, A. (2009). The ICSID convention: A commentary. Cambridge: CUP. Simpson, G. (2019). Keynote Speech. Retrieved 6 January 2020, from https://medien.cedis.fuberlin.de/cedis_medien/projekte/rewiss/2019/voelkerrecht/cynical_international_law.mp4 Sornarajah, M. (2015). Developing countries in the investment treaty system: A law for need or a law for greed? In S. W. Schill, C. J. Tams, & R. Hofmann (Eds.), International investment law and development: Bridging the gap (pp. 43–68). Cheltenham: Edward Elgar. Watson, D., & Brebner, T. (2018). Nationality planning and abuse of process: A coherent framework. ICSID Review, 33(1), 302–329.

Philipp Janig is a researcher and lecturer at the Chair for International Law and International Human Rights Law of the Bundeswehr University Munich, Germany.

(New) Ways of Combating Abuse and Circumvention of European Law on the Example of Tax Evasion and Tax Avoidance Helene Hayden

Abstract Aggressive tax practices threaten tax revenues and tax justice, and distort competition. While both the phenomenon of permissible (aggressive) tax planning and the impermissible abuse of rights might be seen as cynical forms of taking advantage of tax law, for the tax subject the distinction is crucial. This is especially true given their right to choose a tax-efficient structure. This chapter examines the limits of cynicism in the form of an abuse of European (tax) law, as well as concrete criteria of anti-abuse rules and their development at the European level.

1 Introduction At the World Economic Forum 2019, the historian Rutger Bregman stressed that it is cynical when people talk about philanthropic engagement, equality and transparency, yet ‘almost no one raises the real issue of tax avoidance’.1 After the so called ‘Panama Papers’2 and ‘Paradise Papers’,3 he rekindled public debate on fair taxation of companies and showed once again that cynicism in law comes in all shapes and sizes: Apart from cynicism displayed by state actors in the context of international and European (Tax) law, it can also be pursued—as will be shown under Sect. 1.1—by non-state actors who abuse or circumvent regulations to gain economic advantages.

The author especially thanks Prof. Dr. Franz C. Mayer, LL.M. (Yale), for the fruitful discussion and valuable comments on the chapter. This chapter is based on (the main results of) Hayden (2018). 1

Elliott (2019). Varro (2016), pp. 458–461. 3 See Schmidbauer (2017). 2

H. Hayden (*) Austrian Federal Ministry of Justice, Vienna, Austria © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2021 B. Baade et al. (eds.), Cynical International Law?, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 296, https://doi.org/10.1007/978-3-662-62128-8_19

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In 2013, the Organisation for Economic Co-operation and Development (OECD) pointed out the extent to which aggressive fiscal practices are threatening tax revenues, as well as tax justice and competition, and drew up a non-binding action plan against ‘Base Erosion and Profit Shifting’ (BEPS).4 Studies mandated by the European Commission came to the conclusion that the threat amounted to a difference between the expected value added tax revenue and the amount actually collected within the EU of up to € 137.5 bn in 2017.5 As a result, the European Commission followed the OECD by initiating an ‘Anti-Tax Avoidance Package’, drafting a Recommendation addressed to EU Member States6 and passing the ‘AntiTax-Avoidance-Directive’.7 The Directive, which had to be implemented by the end of 2018, not only implements the OECD’s Base Erosion and Profit Shifting-Project, but goes beyond it: In addition to specific regulations such as, e.g. exit taxation rules (i.e. taxation concerning hidden reserves upon relocation of assets or entities), its Article 6 introduced—in contrast to the OECD action plan—a general anti-abuse rule. Moreover, the DAC 6-Directive, which had to be implemented by the end of 2019, imposes a duty of disclosure on taxable persons when using certain legal structures.8 Since no other field of law attracts aggressive legal forms of this intensity, and both the European Commission and the European Court of Justice (ECJ) are put under pressure by the sheer economic dimension to develop remedies against tax abuse, the example of tax abuse can serve as a valuable example for elaborating an anti-abuse concept. Apart from tax law, the case law delivered to date and the (increasing) number of legislative acts offer an insight into a Pan-European concept of abuse and ways to combat it. To comprehensively analyse cynicism in the form of abuse of European law, the first step will be to define the forms of action frowned upon and underlying conflicts of interest (Sects. 1.1 and 1.2). In a second step, the European concept of abuse of law and its development in tax law as well as already existing and new ways of combating it will be outlined (Sect. 2).

4

OECD (2013a, b). Center for Social and Economic Research and Institute for Advanced Studies (2019). It is to be noted, however, that within the report not only tax evasion and avoidance were considered, but also, i.a. corporate insolvencies or bankruptcies and maladministration. 6 Recommendation (EU) 2012/772 on aggressive tax planning (2012) OJ L338/41 (hereafter Recommendation on aggressive tax planning 2012). 7 Council Directive (EU) 2016/1164 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (2016) OJ L193/1 (hereafter Anti-Tax-AvoidanceDirective or ATAD). 8 Council Directive 2011/16/EU on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC [2011] OJ L64/1 (hereafter Mutual Assistance Directive) as amended by Council Directive (EU) 2018/822 amending Directive (EU) 2011/16 as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements [2018] OJ L139/1 (hereafter DAC 6-Directive). 5

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Background and Definitions

A distinction must be made between inadmissible and permissible forms of tax savings: First, inadmissible forms of tax savings can be seen both in the abuse of the law and in criminal tax evasion:9 The abuse of a right as understood in this contribution consists of using a right in a manner that is incompatible with its purpose, while formally meeting the requirements for exercising or invoking the right, therefore a teleological misapplication.10 There is no uniform definition of ‘abuse’ and in addition to this term, the ECJ and the European legislator also regularly use ‘circumvention’,11 ‘avoidance’12 or ‘wholly artificial arrangements’13 indiscriminately. For the sake of consistency, the term ‘abuse’ is used here. This concept can also be found, e.g. in Article 36, 2nd sentence (abuse of the grounds for justification of restrictions on the free movement of goods), Article 102 Treaty on the Functioning of the EU (TFEU)14 (abuse of a dominant position) or Article 54 Charter of Fundamental Rights of the EU (abuse of fundamental rights), although one must bear in mind that those provisions are substantially limited to the underlying (fundamental) rights. Unlike the (criminal) tax evader, who conceals facts or distorts them, someone who ‘abuses’ the law discloses all the relevant facts to the tax authority.15 According to the ECJ, abuse is also a ‘purely objective phenomenon’ whereas (criminal) tax evasion necessarily contains an ‘element of intent’,16 although in certain cases the Court has emphasised the intention to obtain a tax advantage when finding an abuse.17 The distinction between evasion and abuse is relevant at the national level but not to the present analysis18 because—as is evident in the context of the so-called Cum-ex trials19—the question of whether a conduct constitutes not only a ‘mere’ abuse (that is not recognised for tax purposes) but rather tax evasion (that is 9

Bergmann (2010b), p. 481. See also ECJ, Case C-110/99 Emsland Stärke, ECLI:EU:C:2000:695, paras. 52–53 (hereafter Emsland Stärke); Beiser (2006), pp. 323–324. 11 ECJ, Case C-229/83 Association des Centres distributeurs Leclerc, ECLI:EU:C:1985:1, para. 27. 12 Council Directive (EC) 2003/96 restructuring the Community framework for the taxation of energy products and electricity (2003) OJ L283/51. 13 ECJ, Case C-196/04 Cadbury Schweppes, ECLI:EU:C:2006:544, paras. 51, 55 (hereafter Cadbury). 14 Consolidated Version of the Treaty on the Functioning European Union (2012) OJ C326/47 (hereafter TFEU). 15 Bergmann (2010a), p. 248; Kofler (2011), Art. 1, para. 66. 16 Joined Cases C-138/86 and 139/86 Direct Cosmetics Ltd und Laughton Photographs Ltd, ECLI: EU:C:1988:383, para. 21; differing view: Bergmann (2010a), p. 258. 17 ECJ, Emsland Stärke, supra note 10, paras. 52–53; Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16 Skatteministeriet, ECLI:EU:C:2019:134, para. 124 (hereafter Skatteministeriet). 18 Bergmann (2010a), p. 248. 19 These relate to schemes developed to receive double tax reclaims, see e.g. Oltermann (2019). 10

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criminally punishable), is based on the application of clearly defined criminal offences. The decisive distinction for the present analysis is rather the one between abuse of rights and legitimate tax planning, a line that is much more difficult to draw. That the former distinction is much clearer than the latter follows from the fact that criminal offences must be clearly defined to comply with the requirements of Article 7 European Convention on Human Rights (principle of legality). Second, on a European level, the difference between abuse and permissible, yet aggressive, tax planning is of greater interest:20 tax planning, or arbitrage, means that the taxpayer makes—without acting against the purpose of the rules—use of the subtleties of a tax system or inconsistencies between different tax systems (for example through double deduction or double non-taxation) to keep the tax burden as low as possible.21 Both the ECJ and the EU legislator recognise in this context in general the right of the tax subject to choose the most (tax-)efficient solution.22 Therefore, as long as there are incoherencies within the law, the tax subject is allowed to act to a certain extent in a cynical manner and is granted a (limited) ‘right to cynicism’ (understood in a broad manner, see below). On the delimitation between the actual abuse of rights and aggressive tax planning, the EU legislator has recently taken action by passing the DAC 6-Directive that regulates the mandatory automatic exchange of information in the field of taxation and that shall have a deterrent function.23 It follows from the aforementioned that at least a negative definition of abuse can be established: The concept of the abuse of rights and the fight against it focuses neither on criminal tax evasion (the chosen instrument here is criminal law) nor on permissible tax planning (here, state restrictions find a barrier in the principle of private autonomy).24 Against the background of these definitions, cynicism understood in a broad manner, namely in the sense of an indecent or immoral behaviour, could both cover criminal tax evasion, impermissible tax avoidance and even aggressive—yet permissible—tax planning. In the present case, however, an understanding of cynicism based on Sloterdijk’s terminology of an ‘enlightened false consciousness’ (referring to people who live according to false values and are ironically aware of this)25 is of interest, specifically the contradiction in terms and hypocrisy that becomes apparent. This contradiction manifests itself most in the abuse of rights where the tax subject formally adheres to the wording of the law and yet at the same time consciously

20

Bergmann (2010a), p. 248; Kofler (2011), Art. 1, para. 66. Recommendation on aggressive tax planning 2012, supra note 6, recital 2. 22 ECJ, Case C-255/02 Halifax, ECLI:EU:C:2006:121, para. 73 (hereafter Halifax); ATAD I recital 11; Drüen (2017), p. 86. 23 DAC 6-Directive, supra note 8; see also Finsterer and Lehner (2018), p. 351. 24 For recognition of this principle, see ECJ, Case C-499/04 Werhof, ECLI:EU:C:2006:168, para. 23. 25 Sloterdijk (1983), p. 37. 21

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hollows it out or counteracts the purpose of the law. Concerning the abuse of rights in (tax) law, cynicism therefore takes the form of the use of a legal instrument against its own purpose. Hence, cynicism is a teleological, but not a moral problem in this context.

1.2

Colliding Interests and Problems

Concerning the demarcation between tax planning and abuse, both legislation and case law are still in development. From the taxpayer’s point of view, the right to choose the most tax-efficient structure must be protected and it must be considered that legal acts—especially in the case of financial burdens—must be certain and foreseeable.26 However, offering a special anti-abuse rule for each specific abusive structure would be impracticable and cumbersome. From the point of view of the Member States and the EU, instruments against the abuse of tax law must be sufficiently flexible to be able to effectively cover the different forms of abuse. But a general anti-abuse rule that is too wide could constitute an obstacle to the internal market and, in this context, the tension between fundamental freedoms and the exercise of fiscal sovereignty by Member States must be considered as well.27 Particularly on non-harmonised direct taxes and the exploitation of remaining incoherencies, it must also be noted that a blanket rule against the abuse of rights must not be used to replace failed or missing legislation.28 Against this background, one might argue that it is not the tax subject that is to blame for acting cynically (but on the contrary economically reasonable) but that it is the Member State that accepts incoherencies within its own tax system or in connection to other tax systems and now punishes the tax subjects which make use of these. Such arguments fail to consider, however, that especially concerning international tax law, one Member State cannot avoid incoherencies in connection with other states’ tax systems. Further, concerning national tax law, the legislator is not able to cover each hypothetical constellation in a precise manner. Therefore, the behaviour of a Member State cannot be classified as cynical, but rather as immobile or limited to certain means. The cynical actors are therefore in general the tax subjects that engage in abusive behaviour. From the above, it is not surprising that so far there is no clear demarcation of the concept of abuse of rights.

26

See e.g. ECJ, Case C-301/97 Netherlands v. Council, ECLI:EU:C:2001:621, para. 43; ECJ Halifax, supra note 22, para. 72. 27 Hey (2017), p. 249; Oppel (2016), p. 798; Commission, The application of anti-abuse measures in the area of direct taxation—within the EU and in relation to third countries (Communication) COM (2007) 785 final, 2 (hereafter Communication COM (2007) 785 final); Kofler (2011), Art. 1, para. 63. 28 Drüen (2017), p. 86.

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2 Development of the European Concept of Abuse of Rights 2.1

General Legal Principle

The case law of the ECJ contains a general prohibition of abuse of rights, according to which the application of EU law finds its limit in abusive practices (i.e. abuse of law or of certain rights) and no one may abusively invoke rights guaranteed under EU law.29 Although, for example, Hahn rejects the adoption of a ‘general legal principle’,30 the prohibition is in my view to be qualified as a general legal principle of EU law that is precisely based on an abstract understanding of abuse and not on several sector-specific abuse principles.31 First, the ECJ already qualified it as a legal principle; second, a holistic approach is inherent to a ‘general’ principle/prohibition, and a reason that could justify a sector-specific prohibition that is, i.e. limited to tax law is not apparent.32 The fact that the Value Added Tax flows partly to the EU and thus directly affects EU interests cannot justify a different tax-specific standard in contrast to other taxes flowing exclusively to the Member States33 (here, in a sense, a reversed principle of equivalence could be made out). Regardless of the flow of tax payments, there must therefore be protection against abuse of laws within the scope of EU law. In addition, the qualification as a general legal principle corresponds to the principle of legal certainty and the protection of legitimate expectations. As pointed out in the case Cussens, the general prohibition of the abuse of rights is also directly applicable regardless of whether it is implemented in national law or not.34 Nevertheless, the inconsistent terminology indicates that it is not a ‘monolithic’ principle and that it does not prescribe a normative assessment standard.35 Consequently, different forms or groups of cases must be considered: first, those in the

29 ECJ, Case 125/76 Cremer, ECLI:EU:C:1977:148, para. 21, concerning agricultural policy; ECJ, Case C-367/96 Kefalas and others, ECLI:EU:C:1998:222, para. 20, concerning corporate law; ECJ, Halifax, supra note 22, paras. 68 and 70, concerning the VAT; ECJ, Case C-6/16, Eqiom SAS, ECLI:EU:C:2017:641, para. 26 (hereafter Eqiom). 30 Hahn (2006), p. 404. 31 See ECJ, Case C-251/1 Cussens, ECLI:EU:C:2017:881, para. 31 (hereafter Cussens) and its reference to ECJ, Case C-101/08 Audiolux and Others, EU:C:2009:626, para. 50 concerning the nature of general principles; Bergmann (2010a), p. 250. 32 See also Moser (2012), p. 8. 33 Kokott (2018), paras. 116 et seq. 34 ECJ, Cussens, supra note 31, para. 44; see also ECJ, Halifax, supra note 22, paras. 68, 70; ECJ, Case C-321/05 Kofoed, ECLI:EU:C:2007:408, paras. 40 et seq. (hereafter Kofoed); differing Kofler (2011), Art. 1, para. 70. 35 See ECJ, Cussens, supra note 31, para. 31: ‘The principle that abusive practices are prohibited, as applied to the sphere of VAT by the case-law stemming from the judgment in Halifax, thus displays the general, comprehensive character which is naturally inherent in general principles of EU law’.

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context of the EU fundamental freedoms (Sect. 2.2) and, second, those regarding the refusal of a tax advantage granted under secondary law (Sect. 2.3).36

2.2 2.2.1

Abuse of Rights as Defined in the Context of Fundamental Freedoms: The Cadbury Criteria Applicability of the Fundamental Freedoms

In the fiscal area, Article 49 (freedom of establishment) and Article 63 TFEU (free movement of capital) are especially pertinent: In general, if a national of an EU Member State holds shares of a company resident in another Member State and holds decision-making power or definite influence, a national measure must be examined based on Article 49 TFEU; otherwise based on Article 63 TFEU.37 The following analysis is based on Article 49 TFEU. As the freedom of establishment in Articles 49, 54 TFEU presupposes an actual economic (not merely artificial) activity, it can be questionable whether the right can be relied on in the case of a seemingly abusive structure such as shell corporations that do not operate any businesses or provide any services or goods. However, it clearly follows from the cases Centros and Inspire Art that an abusive use of the freedom of establishment cannot be presumed if a company is founded with the ‘sole purpose’ of falling under (tax-)advantageous provisions.38 According to the ECJ in Polbud, when transferring the registered office it is incumbent on the Member State of entry to determine the necessary extent of economic activity to demonstrate the company’s links with its national legal order.39 The ECJ further rejected a general presumption of abuse of rights and required a case-by-case examination.40

2.2.2

Justification for an Encroachment

An abuse of rights can be prevented by justifying an interference with fundamental freedoms with reasons of public interest. Although the ECJ has found that a Member

36

See e.g. ECJ, Case C- 255/02 Halifax ECLI:EU:C:2005:200, Opinion of AG Maduro, para. 63; Kofler (2011), Art. 1, paras. 68–69. 37 See e.g. ECJ, Case C-436/00 Riksskatteverket ECLI:EU:C:2002:704, paras. 30 et seq.; ECJ, Cadbury, supra note 13, paras. 30–33. 38 ECJ, Case C-212/97 Centros, ECLI:EU:C:1999:126, paras. 28–29; ECJ, Case C-167/01 Inspire Art, ECLI:EU:C:2003:512, para. 96. 39 ECJ, Case C-106/16 Polbud, ECLI:EU:C:2017:804, para. 38 (hereafter Polbud). 40 ECJ, Polbud, supra note 39, para. 63.

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State’s intention to avoid a loss of taxes does not constitute a justification,41 Member States may justify a restrictive measure against ‘wholly artificial arrangements’ that aim to circumvent the applicable national tax law and the tax that would otherwise be owed.42 Therefore, according to the ECJ in Cadbury, an abuse of rights is found and a national countermeasure encroaching on fundamental freedoms is justified when • first, according to objective evidence, the fundamental freedom formally applies, but the telos pursued by the fundamental freedom is thwarted; and • second, there is a ‘subjective element’, namely the exclusive43 or predominant44 pursuit of a tax advantage.45 This element must also be objectively verifiable.46 Moreover, the measure that restricts the freedom of establishment to prevent abuse must comply with the principle of proportionality, i.e. it must be suitable for preventing abuse and must not go beyond what is necessary.47 If, for example, a subsidiary carries out real economic activities, the restrictive measure must not be applied indiscriminately to that subsidiary.48 The taxable person must therefore be allowed to repudiate the allegation of an abuse of rights by providing evidence for economic reasons for the arrangement.49

41 ECJ, Case C-136/00 Danner, ECLI:EU:C:2002:558, para. 56; see e.g., however, concerning the combat against tax evasion/avoidance ECJ, Case C-9/02 Lasteyrie du Saillant, ECLI:EU: C:2004:138, paras. 50, 67; ECJ, Case C-446/03 Marks & Spencer, ECLI:EU:C:2005:763, para. 57. 42 ECJ, Cadbury, supra note 13, paras. 49 et seq. 43 To this end, see e.g. ECJ, Case C-330/07 Jobra, ECLI:EU:C:2008:685, para. 35: ‘wholly artificial arrangements . . . whose only purpose is to obtain a tax advantage’; ECJ, Case C-524/04 Test Claimants in the Thin Cap Group Litigation, ECLI:EU:C:2007:161, paras. 82 and 86 (hereafter Test Claimants): ‘a purely artificial arrangement, entered into for tax reasons alone’; ECJ, Cadbury, supra note 13, paras. 63: ‘a wholly artificial arrangement intended solely to escape that tax’. 44 Exclusivity is mitigated to the extent that the ECJ declares a so-called ‘motive test’ to be admissible regarding the question of economic activity, according to which company A would have to prove that the reduction of the tax burden was not the or one of the main objectives of the capital transfer and that the tax reduction was not the or one of the main motives for establishing company B (see Cadbury, supra note 13, paras. 62 and 70). 45 ECJ, Cadbury, supra note 13, paras. 64–67. 46 ECJ, Test Claimants, supra note 43, para. 86; see also ECJ, Cadbury, supra note 13, para. 67; Stieglitz (2014), p. 528. 47 Bieber (2007), p. 617. 48 ECJ, Cadbury, supra note 13, paras. 61 and 67; ECJ, Joined Cases C-504/16 and C-613/16 Deister Holding AG and others, ECLI:EU:C:2017:1009, paras. 61–62; Gosch (2013), p. 216; see, however, VfGH 29.2.2012, B 945/11; Blum and Spies (2017), p. 580 fn. 35. 49 ECJ, Case C-311/08 SGI, ECLI:EU:C:2010:26, para. 71 (hereafter SGI); ECJ, Test Claimants, supra note 43, para. 82.

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Abuse of Rights as Defined in the Context of Secondary Legislation: The Halifax Criteria Unwritten Protection Against Abuse

Whereas the previous section concerned the avoidance of national tax rules under the ‘guise’ of exercising fundamental freedoms, this section focuses on the (mis-)use of favourable tax treatments granted under EU secondary law. In secondary law, the assessment of the legal consequences must be based on the situation which would have existed without the abusive arrangement.50 Unless the relevant secondary legislation provides for an explicit anti-abuse clause, it is uncertain under which conditions Member States can deny tax advantages on the grounds of an abuse of rights. In Halifax,51 the ECJ held—drawing on the general legal principle of the prohibition of abuse of rights—that the Sixth ValueAdded-Tax Directive52 is to be interpreted as precluding an abusive use of a tax advantage (here: input tax deduction) if • first, the formal applicability of secondary law or implementing national measures leads to a tax advantage which is contrary to the objectives of the specific provisions (or the objectives of the Directive, or the general objectives of the EU law);53 and • second, it is apparently based on objective evidence that ‘essentially [not: exclusively]54 a tax advantage is intended’.55 The prohibition of abuse of rights does not apply if the arrangement in question can also be explained by non-tax reasons.56

50

ECJ, Cussens, supra note 31, para. 46. ECJ, Halifax, supra note 22; see also ECJ, Case C-522/16 Staatssecretaris van Finacien, ECLI: EU:C:2017:778, para. 28; ECJ, Case C-39/16 Argenta Spaarbank NV, ECLI:EU:C:2017:813, para. 60; ECJ, Case C-131/14 Malvino Cervati and others, ECLI:EU:C:2016:255, para. 32; ECJ, Case C-504/10 Tanoarch s.r.o., ECLI:EU:C:2011:707, para. 52; ECJ, Cussens, supra note 31, paras. 52–62; ECJ, Case C-178/05 Commission v. Greece, ECLI:EU:C:2007:317, para. 32 (hereafter Commission/Greece); see, however, Hahn (2006), p. 402, who sees it as a departure from a general prohibition of abuse. 52 Sixth Council Directive (EEC) 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes—Common system of value added tax: uniform basis of assessment (1977) OJ L1977/145, 1 (hereafter Sixth VAT Directive) as amended by the Council Directive (EC) 95/7 (1995) OJ L102/18. 53 See also ECJ, Case C-251/16 Cussens ECLI:EU:C:2017:64, Opinion of AG Bobek, para. 65, with regard to the specific provisions of the Directive. 54 ECJ, Case C-425/06 Part Service Srl, ECLI:EU:C:2008:108, paras. 40–45 (hereafter Part Service Srl). 55 ECJ, Halifax, supra note 22, paras. 74–75 and 81. 56 ECJ, Halifax, supra note 22, para. 75; see also ECJ, Commission/Greece, supra note 51, para. 32. 51

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Any encroachment on the position of the taxpayer to prevent an abuse of rights must also be proportionate in the area of secondary law.57 Abuse cases may therefore not be assessed according to uniform criteria but require a case-by-case analysis.58 A comparison between the ECJ’s jurisprudence in the two groups of cases reveals that the criteria for abuse developed in Cadbury for the first group are more restrictive than those developed in Halifax for the second group. The requirement of ‘a wholly artificial arrangement’ prescribed in Cadbury has been omitted in Halifax for the second group, particularly in the area of Value Added Tax and customs law.59 Yet in the latter group, the artificial character of (or, to the contrary, an existing legal, economic or personal link to) an arrangement may be considered to determine whether and to what extent a tax advantage is intended in a specific case.60 The insistence on an ‘exclusive’ pursuit of a tax advantage in Cadbury suggests a more restrictive standard than the one in Halifax, where ‘essentially’ pursuing a tax advantage is sufficient.61 That the ECJ requires such an intention in Cadbury follows from its expression of ‘wholly’ artificial forms.62 Notwithstanding far-reaching parallels, the Halifax case law is therefore based on a different, namely broader, standard than the more restrictive Cadbury criteria.

2.3.2

General Anti-Abuse Rules

Several Directives in the area of direct taxes, such as Article 15(1) Merger Directive63 or Article 1(2) Parent-Subsidiary Directive,64 provide for a general anti-abuse

57 For example, the burden of proof lies with the tax authorities and the tax subject has the option of rebuttal (ECJ, SGI, supra note 49, paras. 71–75); approving Blum and Spies (2017), p. 578. 58 ECJ, Case C-28/95 Leur-Bloem, ECLI:EU:C:1997:369, para. 41; see also ECJ, Case C-162/07 Ampliscientifica Srl and others, ECLI:EU:C:2008:301, para. 31; more tolerant VfGH 29.2.2012, B 945/11; Blum and Spies (2017), p. 581. 59 ECJ, Case C-155/13 SICES, ECLI:EU:C:2014:145, paras. 30–34. 60 ECJ, Cussens, supra note 31, para. 60; ECJ, Part Service Srl, supra note 54, para. 62; ECJ, Halifax, supra note 22, para. 81; dissenting with regard to a uniform abstract concept of abuse Kofler (2011), Art. 1, para. 79; Bergmann (2010a), pp. 256–266; see also Commission, Report in accordance with Article 8 of Council Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States, COM (2009) 179 final 10; Communication COM (2007) 785 final, supra note 27, p. 5. 61 See also Kofler (2011), Art. 1, para. 69. 62 On the importance to be attached to terminology, see also Langer and Orzechowski (2017), p. 84. 63 Codified: Directive (EC) 2009/133 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (2009) OJ L310/34, 39–40. 64 See Directive (EU) 2011/96 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (2011) OJ L345/8-16 (hereafter ParentSubsidiary Directive); Directive (EU) 2015/121 amending Directive 2011/96/EU (2015) OJ L21/1-

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rule. Article 1(2) Parent-Subsidiary Directive stated—before the amending Directive 2015/121/EU—as follows: This Directive shall not preclude the application of domestic [e.g. § 22 Austrian Federal Tax Code] or agreement-based [e.g. double taxation treaties] provisions required for the prevention of fraud or abuse.65

Accordingly, Member States may consider the Directive’s provisions non-applicable to an abusive arrangement, but the conditions for non-application must be interpreted narrowly as this is an exception.66

Autonomous Interpretation It is not yet settled whether the abuse reservations are to be based on an autonomous EU or a national concept of abuse.67 The wording cited above seems to refer to national law. The application of an abuse standard of the respective Member State is supported by the fact that the possibilities of abuse depend on the respective provision circumvented, and they often result from special features of the respective legal system. The question of abuse could therefore be better addressed at national level.68 Due to the long traditions of Member States’ national prohibitions on an abuse of rights and in accordance with the subsidiarity principle, legal certainty could better be preserved this way.69 Recourse to national law, however, could jeopardise the effective and uniform application of EU law as well as its primacy and direct applicability: Member States could indirectly determine the scope of EU law through their definition of abuse.70 Further, not all European legal systems have a general prohibition of abuse of rights.71 Generally, and in accordance with the uniformity and primacy of EU law, an autonomous interpretation seems preferable in my view.72

3, whereas the current provision was adopted almost identical in wording in Art. 6 Anti-TaxAvoidance-Directive. 65 Kofler (2011), Art. 1, para. 61; examples added by the author. 66 See e.g. ECJ, Case C-352/08 Modehuis A. Zwijnenburg, BV, ECLI:EU:C:2010:282, para. 45 (hereafter Zwijnenburg); ECJ, Case C-285/07 A.T., ECLI:EU:C:2008:705, para. 31; ECJ, Kofoed, supra note 34, para. 37. 67 Hahn (2006), p. 399; see, however, BFH 20. 03. 2002, I R 38/00 BStBl II 2002, 819, where this was judged to be irrelevant. 68 Hey (2017), p. 250. 69 Hahn (2006), p. 400. 70 On this danger, see ECJ, Case C-373/97 Dionysios Diamantis, ECLI:EU:C:2000:150, para. 43; see also Hahn (2006), p. 400. 71 Hahn (2006), p. 402. 72 See Joined Cases C-138/86 and 139/86 Direct Cosmetics und Laughton Photographs, ECLI:EU: C:1988:383, para. 20 concerning the concept of tax avoidance of the Sixth VAT Directive.

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In the case of general anti-abuse provisions, it can be assumed that their concept of abuse corresponds to that of the general principle of EU law. They can be seen as an emanation of the general principle of the prohibition of abuse of rights.73

The Halifax Criteria as the Standard for a General Anti-Abuse Rule In a legal system, comparable terms must be assigned a corresponding content,74 and any deviation in interpretation would have to be justified. The criteria of the (European) concept of abuse in general anti-abuse rules are therefore not to be determined by the stricter Cadbury, but by the broader Halifax criteria.75 Otherwise, Member States would have to apply more restrictive criteria in cases of an explicit authorisation to prevent abuse, than they would in the absence of any such provisions (see Sect. 2.3.1). Contrary to its intention to strengthen the defence against abuse of rights, the legislator’s action would have weakened it. At this point, however, the ECJ has not issued a precise delimitation of the Cadbury criteria.76

Article 6 Anti-Tax-Avoidance-Directive Based on the impetus of the OECD Base Erosion and Profit Shifting-project, the European Commission presented a package of measures on 28 January 2016, which included a proposal for the ‘Anti-Tax-Avoidance-Directive’. In addition to the implementation of the Base Erosion and Profit Shifting-Action Plan, the Directive aimed at ensuring taxation at the place of profit/added value and the effective exercise of the fiscal sovereignty of the Member State and strengthening fair competition.77 The general anti-abuse clause is an essential part of this. Under Article 6 (1) Anti-Tax-Avoidance-Directive, an arrangement or a series of arrangements are inadmissible if the main purpose or one of the main purposes is to obtain a tax advantage which thwarts the objective of the applicable tax law, and if the arrangement is ‘not genuine’. A non-genuine arrangement is to be assumed to the extent that valid economic reasons are lacking.

73

ECJ, Kofoed, supra note 34, para. 38; ECJ, Eqiom, supra note 29, para. 26; Bergmann (2010a), p. 250. 74 See also ECJ, Case C-169/04 Abby National plc and others, ECLI:EU:C:2005:523, Opinion of AG Kokott, para. 74; agreeing Bergmann (2010a), p. 247. 75 Different view Bergmann (2010a), pp. 257–258, who wants to fall back on the Cadbury criteria. 76 See e.g. ECJ, Zwijnenburg, supra note 66, where the question of artificiality is not mentioned; ECJ, Kofoed, supra note 34, para. 38, where reference is made to both lines of judicature; ECJ, Eqiom, supra note 29, paras. 30 and 33, where the ECJ demands the artificiality criterion of secondary law. 77 Anti-Tax-Avoidance-Directive I Recital 1.

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Article 6 Anti-Tax-Avoidance-Directive thus corresponds to the Halifax criteria.78 It can be assumed that the legislator intentionally adopted them because it decided against including the artificiality criterion known from Cadbury, despite a recommendation by the European Commission to do so.79 Furthermore, Article 6 (1) sets tax and non-tax considerations in relation to each other (like the Cadbury criteria of pursuing ‘exclusively or predominantly a tax advantage’ and the Halifax criteria of pursuing ‘essentially a t