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3. international law

COST Action IS1003 International Law Between Constitutionalisation and
Fragmentation
Project on
Comparative Law in International (Quasi-)Adjudication: Comparing the
Comparison
ORGANISERS:
Monika Ambrus (University of Groningen) and Veronika Bílková (Charles
University, Prague)
PURPOSE OF THE PROJECT:
Whether and to what extent there is constitutionalization/fragmentation in
international law can be addressed in various manners. A rather practical approach
looks at the practice of international (quasi-)adjudicative bodies, and might compare
various aspects thereof. Admittedly, various studies and projects have focused on the
phenomenon of proliferation of international courts and tribunals addressing different
aspects thereof, such as diverging/converging interpretation of substantive norms (e.g.
‘overall control’ / ‘effective control’) or procedural approaches (e.g. the COST project
on standard of review across various judicial bodies), and discussing potential
consequences thereof for international law in general. In addition to interpreting and
applying substantive and procedural norms, international (quasi-)adjudicative bodies
have also relied on various methods in their adjudication, among which the
comparative law method deserves special attention. Not only is this method generally
applied in international (quasi-)adjudication, the manner in which it is carried out can
also be very influential for the final outcome of the case. In this light, it is rather
remarkable that lawyers are hardly trained on the theory or application of this method.
Comparative law or comparing legal systems, legal provisions, legal
approaches is a method generally used in international (and also national) (quasi)judicial adjudication for various purposes: to find out whether a norm has reached
the status of customary international law (so state practice and opinio juris are
examined), to establish whether or not there is a common approach among states (e.g.
common European standard within the practice of the European Court of Human
Rights), to gain inspiration for the interpretation of certain norms and so on. Not only
is there a diversity in terms of the purposes of the comparative legal assessments
across the various (quasi-)adjudicative bodies, these entities also use various sources
and various methods for comparison – which might, conceptually, not always be in
line with the actual purpose of the comparison. For instance, in terms of sources in
addition to national law and practice, the practice of international courts or advisory
bodies is also relied on; or concerning the method used, different courts might turn to
the comparative assessment at different phases of the adjudication, or the
thoroughness of the comparison might vary across (and also within) such entities.
Accordingly, with regard to the comparative exercises of these adjudicative bodies the
following questions can be posed: why, what and how. Why the comparative exercise
is carried out refers to the purpose of the comparison; what is compared describes the
sources that are being compared, and how comparison is done focuses on the method
the particular bodies use.
1 Discovering the various aspects of the manner in which the comparative law
method is used would provide important insights not only into the
divergence/convergence across (quasi-)judicial entities in terms of the method they
rely on, but also into various aspects of the comparative law method as such and its
influence on judicial decision-making in general.
The main questions to be addressed under the egis of this project are the
following:
1.
Why comparison is carried out within the practice of international
(quasi-)judicial bodies?
2.
What is compared when the comparative method is relied on?
3.
How such comparison is made?
4.
What influences the choices made by (quasi-)adjudicative bodies as
regards the comparative exercise?
5.
What is the effect of the outcome of the comparison on the final
outcome of the case, what factors has implications for this
influence?
6.
What is the role of judicial dialogue (usually discussed concerning
domestic legal systems and the ECJ/ECtHR) at the international
level?
7.
More generally, can trends of constitutionalisation/fragmentation be
observed in the manner in which the comparative law method is
being applied in international (quasi-)adjudication?
PLANNED OUTCOME:
Step 1:
Workshop (25-26 August 2014) – exploring various fields of
international adjudication where comparative law method is used,
coming to terms, exploring similarities/differences between
approaches.
Step 2:
Publication of the papers presented at the workshop in combination
with two or three additional papers (classical method of comparative
law, the practice of the ICJ and investment law) in a special volume of
a journal (e.g. German Law Journal (probably 8-10 articles could fit in
one issue of the journal)).
Step 3:
Based on the papers and their findings, the project can lead to a
somewhat broader project resulting in an edited volume.
The broader project would cover more issue areas and particular
(quasi-)judicial instances as well as more general and theoretical
considerations. Eventually, the coverage of the project can also be
broadened not only from the perspective of the issue areas, but also by
focusing on international law in general not only on international
adjudication.
PARTICIPANTS:
Monika Ambrus
[email protected]
Assistant
professor,
University of Groningen,
The Netherlands
2 Alessandra Arcuri
[email protected]
Associate
Erasmus
Rotterdam,
Netherlands
Veronika Bílková
[email protected]
Assistant
professor,
Charles
University,
Prague,
and
research
fellow at the Institute of
International
Relations,
Czech Republic
Professor
of
public
international
law,
University of Groningen,
The Netherlands
Chair
of
Public
International Law at the
University of Manchester,
and
professor
of
international legal theory
at
University
of
Amsterdam,
The
Netherlands
Professor
of
law,
University of Arkansas at
Little Rock, U.S.
Assistant professor of law
at the Institute of Law
Studies, Polish Academy
of Sciences, Warsaw, and
guest lecturer of public
international and European
law at the Kozminski
Academy in Warsaw,
Poland
Associate professor and
Rosalind Franklink fellow,
University of Groningen,
The Netherlands
Marcel Brus
[email protected]
Jean d'Aspremont
[email protected]
Kenneth S. Gallant
[email protected]
Lukasz Gruszczynski
[email protected]
Brigit Toebes
[email protected]
Ingo Venzke
[email protected]
Aldo Zammit-Borda
[email protected]
Associate
professor,
University of Amsterdam,
The Netherlands
Research associate, Trinity
College, Dublin, Ireland
FINDINGS
Summary
professor,
University
The
3 One of the main questions during the workshop, which was address from various
perspectives, was what comparative law and comparative legal method means, and to
what extent international (quasi-)judicial bodies can and do rely on this method – both
in theory and in practice –, i.e. what is the role of this special actor with regard to this
field of law/method of law. The participants agreed that this workshop did not focus
on comparative law, rather on comparative legal method in a very broad sense,
essentially including various types of comparison. This raised the question whether
we can still call it comparative law method. Differences between the manner in which
comparison is carried out for different purposes were discovered during the meeting
resulting in an interesting discussion on the sources of international law. Last but not
least, the role of international law in the comparison was also addressed.
Core arguments
What use(s) for comparative law in international (quasi-)adjudication?
Veronika Bílková
Comparative law has traditionally been considered of little use in international (quasi)adjudication. After all, if international courts, tribunals and dispute settlement bodies
are called upon to apply international law, why should they resort to the study of
differences and similarities among various domestic legal orders, as comparative law
tends to be defined in literature? The paper demonstrates that there are indeed good
reasons to resort to such a study. It also shows that the standard definition of
comparative law is an excessively narrow one, concealing the potential that the use of
comparative law (or comparative method) can have in international (quasi)adjudication.
The comparison of various national legal orders did not play an important role in
international (quasi-)adjudication as long as it was limited to classical inter-state
cases, decided on the basis of international treaties and customs stemming from interstate practice and opinion iuris. The situation has changed substantively with the
emergence within international law of branches dealing with intra-state issues and
involving private actors. To determine the rules applicable in these branches (under
customary law or general principles of law), international (quasi-) adjudicative bodies
need to look at what states do “at home”, within their national legal orders. Thus,
comparative law comes to use in such areas as human rights law, international
criminal law, international humanitarian law, or international investment law.
At the same time, comparative law does not necessarily have to limit its scope to the
study of differences and similarities among various domestic legal orders. In a
broader understanding comparative method can serve many other purposes in
international (quasi-) adjudication. Thus, for instance, it may help to establish how
various countries or legal culture interpret and apply concepts and rules of
international law. It may also serve to expose the differences with which various
branches of international law relevant to a particular case treat a certain institution.
The paper will provide examples of such uses, explaining their relevance for
international (quasi-)adjudication.
Comparative law used in cases pertaining to IOs
Jean d’Aspremont
I. General observations on comparative law and international law
1) Not all comparative techniques used in legal reasoning amount to an exercise
of comparative law properly so-called. Said differently, it is not certain that all
4 reasonings based on comparative methods qualify as exercises of comparative
law.
2) From a methodological point of view, a “pure” and “objective” comparative
law is unconceivable. It presupposes some perspectivism according to which
truth-claim are made outside any tradition/paradigm. However, there is no
meta-standpoint from which various domestic laws can be compared. For
international lawyers, domestic laws are always identified, compared and
evaluated from the vantage point of international legal categories and that of
the functions for which the comparative exercise concerned is carried out.
3) Comparative methods are primarily used at four levels in international legal
reasoning:
i. (1) When ascertaining a given behaviour as the expression of a
rule (customary law)
ii. (2) When determining the content of a rule (see e.g. the
establishment of general principles; the interpretive role of
subsequent practice)
iii. (3) When determining the level of compliance with a given rule
(responsibility)
iv. (4) When constructing a normative universe based on common
and similar practices or legal mechanisms (e.g. global
administrative law; international institutional law)
4) Knowledge is produced by self-limiting categories that “narrows the range of
concerns and the scope of political possibilities which seem plausible to
professionals and intellectuals concerned with international law and politics”.
This is the primary function of comparative methods: narrowing down the
range of normative construct available to the interpreter (including the judge).
5) The ascertainment of general principles (in the sense of Article 38) probably
constitutes the only exercise of comparative law properly so-called in
international legal practice. However, it is a very specific form of comparative
law that is dedicated to unearthing (constructing) a common denominator
between domestic legal practices.
6) Question of implementation of international law under domestic law are not
question of comparative law. They are question of factual correspondence.
7) The review of domestic law by international courts is not an exercise of
comparative law. It is an exercise of constitutional law.
8) The review of domestic practice is not an exercise of comparative law. It is an
exercise of establishment of fact.
9) Explicit use of comparative law methods by judges are often cosmetic and
discretion-obfuscating measures.
10) Comparative law exercise at the level of law-making are not comparative law
properly so-called. They are compilation exercise.
11) Comparative law exercise at the level of law-making are implementationfacilitating measures as much as violation-preventing measure.
II. Specific considerations on comparative methods and international institutional law
International institutional law, and the judicial practice around it, are known for the
paucity of their theoretical reflections. It is thus not surprising that there is no real
study on the comparative methods which permeate the scholarship and the practice on
international institutional law. This is however not without paradox when one thinks
of the various denominations given to the field. On the one hand, the idea of a “law of
5 international organizations” refers to the idea of autonomous subjects which
constitute autonomous creatures resting on independent sub-orders. The dominant
denomination of “international institutional law”, for its part, manifests the idea that
there is something like a set of regulatory structures common to all international
organizations. In that sense, the idea of an international institutional law rests on a
comparative exercise, for any possible institutional law presupposes that the structures
and traits of all international organisations - simultaneously deemed independent
orders – have been (and can be) compared. This exercise of comparison of the
institutional structures of international organisations on which international
institutional law is premised, albeit not an exercise of comparative law properly socalled, is very reminiscent of the comparative law methods.
It is important to realise that there is a great methodological prejudice in the
comparative presupposition at the heart of international institutional law. This
prejudice boils down to the fact that international organisations are deemed (#1)
independent and autonomous creatures and (#2) commensurable legal constructs.
Indeed, it is only as long as international organisations are distinct creatures but of the
same kind that one can embark on the comparison necessary for the existence of an
international institutional law. Interestingly, each of the two denominations mentioned
above refers to one of these two prerequisite. The law of international organisations
recalls that organisations are distinct orders/creature whilst international institutional
law highlights that they are commensurable objects that can be compared. The
comparative dynamics that allows one to conceive something like a law of
international organisations is thus made possible by two fundamental paradigmatic
choices: autonomy and commensurability. When reflecting on the comparative
methods constitutive of the law of international organizations, such a two-fold
prejudice should be born in mind. Moreover, it cannot excluded that similar
prejudices are witnessed in other areas and practices of international law.
Subsequent practice of WTO Members and treaty interpretation: a specific example of
the use of comparative methods in the WTO context
Lukasz Gruszczynski
The aim of the paper is to examine the methodological approach of the Appellate
Body when confronted with the interpretative issues that require establishment of the
subsequent practice of WTO Members. To this end, the paper will analyse existing
case law where such aspect was analysed and will assess it against the practice of
other international courts.
WTO dispute settlement bodies, unlike other international courts, do not use
traditional comparative law methods when adjudicating trade disputes. Although the
WTO system is not self-contained regime, cases are settled in principle on the basis of
WTO provisions. Any references to customary international law, where comparative
methods are of prime importance, are limited to customary rules of interpretation as
codified in the Vienna Convention on the Law of Treaties (VCLT) and do not involve
any analysis of state practice. There is neither any need for the Appellate Body to
establish a common approach among the WTO Members as the European Court of
Human Rights courts frequently does (because the extent of WTO Members’
obligations do not dependent on any uniform practice). Although some judicial
dialogue between the Appellate Body and other international tribunals exists this is
not really reflected in the language of WTO reports. If there are any sources of
inspirations they remain hidden in WTO reports and any analysis in this respect
6 would need to be highly speculative. Overall this closed approach leaves a little room
for the use of comparative methods by WTO dispute settlement bodies.
Sometimes, they nevertheless engage in the examination of the practice of WTO
Members. Art. 3.2 of the Dispute Settlement Understanding provides that panels and
the Appellate Body are obliged to interpret the provisions of the covered agreements
in accordance with customary rules of interpretation of public international law. As
mentioned above, the Appellate Body has identified Articles 31 and 32 of the VCLT
as embodying such rules. The first one in its subparagraph 3(b) mandates to take into
account in the process of interpretation any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its interpretation.
This is a place where some variation of comparative law methods becomes relevant in
the WTO context.
The Method of Comparative Law in International Adjudication
Ingo Venzke
International courts and tribunals (ICs) are best understood as multifunctional actors
who exercise public authority. Judicial reasoning, in turn, carries the main burden of
justifying their authority and resorting to the method of comparative law is one tool in
the repertoire of judicial reasoning. It has particular appeal when international law
runs out, so to speak—when it is particularly vague and flexible. Comparative law
then promises to step in. I believe there are two contexts where it has been used with
particular prominence. One is the rather established praxis of the ECtHR’s reasoning
about a European consensus. The other is the more recent appeal of comparative law
in international investment arbitration where it forms part of the responses to a
persistent legitimacy backlash. The present contribution focuses on the politics of the
method. More precisely, it highlights its de-contextualizing and, in fact, depoliticizing effect. That, at least, is its likely impact in international investment
arbitration where the use of comparative law—both in the practice of adjudication as
well as in scholarly treatment—tends to gloss over core differences in institutional
set-up between domestic and international settings. The trajectory of proportionality
testing serves as a concrete example to support the argument. [Possibly the
comparative law reasoning about legitimate expectations serves as another.] The main
point is thus a plea to uphold the contextual and institutional sensitivity of
comparative analysis.
International courts, comparative law, and international criminal law (substantive
and jurisdictional)
Kenneth S. Gallant
Comparative law has several roles to play in the development and enforcement of
international criminal law and the international law of criminal jurisdiction and
immunity. International criminal law in the international criminal courts and tribunals
has been founded on the texts of the statutes of these tribunals, whether treaty texts
(e.g., Nuremberg, the International Criminal Court) or legal acts of international
organizations (e.g., the ICTY and ICTR Statutes from the UN Security Council).
However, most of these courts faced legality problems, arising from the fact that they
were created after the commission of most of the great evils they were designed to
prosecute. Many of the statute writers realized that it was important to be able to
7 demonstrate that the substantive criminal law the Courts would enforce already
existed at the time the evil acts were committed. This meant being able to place the
criminal prohibitions in one of the traditional sources of international law at the time
of the acts: in customary international law, general principles of law, or applicable
prior treaty law. The “general principles of law” formulation as a source of
international criminal law was adopted into human rights treaties as part of the
definition of legality.
What we will see is that national criminal law has been important in developing
substantive international criminal law and the law of criminal jurisdiction in
international courts and tribunals. It is more important than one would think given the
tradition that international law is principally made through the international
interactions of states (“state practice” as traditionally defined), whereas comparative
law is traditionally defined as the study of differences and similarities among
municipal legal systems. This tradition, however, has kept comparative methods from
being fully brought to bear on the problems of international criminal law and criminal
jurisdiction in international courts and tribunals.
In particular, comparative law has been very useful in developing so-called “general
principles of law” applicable in international courts and tribunals. However,
comparative law has largely been excluded from the developed of “customary
international law.”
Comparative law scholarship in the practice of the ad hoc tribunals
Aldo Zammit Borda
This Chapter examines the influence of comparative law scholarship on the practice
of the UN International Criminal Tribunal for the former Yugoslavia and for Rwanda.
It considers that while comparative law generally involves understanding differences
in legal systems and traditions, there are various angles from which one may approach
comparative law. One’s view as to the potential lessons for international law may
therefore be contingent on one’s angle. On the basis of a review of the final
judgments (trial and appeal) of the ad hoc Tribunals, the Chapter highlights some
instances in which comparative law scholarship was invoked, finding that the judges
have made use of such scholarship for a number of purposes, including: as a basis for
their reviews of State practice, particularly when they wanted to set out the law in
context; in order to take account of considerations derived from comparative law; and
as a guiding horizon, in order to illustrate the possible consequences of a decision.
The Chapter proceeds to discuss three lessons which internationalists could draw from
comparative law scholarship, namely: (a) approaching the law in context; (b)
embracing plurality; and (c) strengthening methodological integrity. It concludes that,
for comparative law scholarship to continue to play a role in international criminal
adjudication, it would fall on comparative law scholars to continue producing works
of relevance to the cases before the ad hoc Tribunals.
The case of the European Court of Human Rights with international law and legal
practice: an extension of the comparative law method?
Mónika Ambrus
International law and practice is often not seen as being included in the target group
of or in the definition of the comparative law method (CLM). Indeed, CLM is
generally defined as ‘comparing the law of one country to that of another’. However,
8 if one were to ‘compare’ the purposes for which comparison is made across domestic
law and practice with situations in which international law and practice is invoked,
arguably, significant similarities could be identified. In order to demonstrate these
similarities, the paper will provide a prima facie survey of the case law of the
European Court of Human Rights in which international law and practice has played a
role. In the practice of the Court comparative law is used for the following purposes:
to define the scope of rights and obligations, to define certain aspects of the case, to
assign the margin of appreciation, to assist in the balancing act (proportionality) and
as factual evidence. The preliminary survey of the case law of the Court will explore
the reliance on international law and legal practice to highlight the purposes for which
it is used – even though it might in certain instances overlap with the question of
extrinsic material being taken into account for interpretative purposes under Articles
31(3)c) and 32 VCLT.
9