ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

zondag 21 juni 2015

CONFERENCE REPORT: International Law and Time (Graduate Institute ofInternational and Development Studies, Geneva, 12-13 June 2015) byCharalampos Giannakopoulos

Charalampos Giannakopoulos is a PhD Candidate in International Law at the Graduate Institute of International and Development Studies in Geneva. His PhD thesis is entitled “The Use and Abuse of Principles in Investment Treaty Arbitration” and his research interests include international adjudication, legal theory and legal philosophy. Mr Giannakopoulos holds a first degree in law from the University of Athens and an LL.M in Public International Law from University College London.

How does the passage of time affect international law? How does it bear on the processes of law-ascertainment and content-determination of legal norms (to borrow the terminology used by Jean d’Aspremont)? Time, we say, is a healer, but can it “heal” grave violations of international law, for instance by restricting access to justice? Is time absolute or rather relative in the way it pertains to law? Can time be used strategically by States, courts, and other international actors? These were some of the questions that led Klara Polackova Van der Ploeg, Luca Pasquet and Leόn Castellanos Jankiewicz (PhD Candidates, Graduate Institute) to convene a two-day conference at Geneva’s Graduate Institute of International and Development Studies, under the theme of International Law and Time.

The conference opened with a roundtable, chaired by Professor Andrea Bianchi, (Head of the International Law Department, Graduate Institute) and comprised of Professors Andrew Clapham, Zachary Douglas, Marcelo Kohen, Nico Krisch, and Joost Pauwelyn, teasing out the various themes of the interrelation between international law and the dimension of time that each of the subsequent six panels would then address. 

Panel 1: “Attributing Meaning to Time: Visions of History and Future”, comprised of Dr Juhana Mikael Salojärvi (University of Helsinki) and Professor Timothy Waters (University of Indiana).
Dr Juhana Mikael Salojärvi started by pointing out the importance of the act of “temporalizing” legal concepts throughout history. According to Dr Salojärvi, temporalisation (and therefore time) is a methodological tool at the hands of the legal historian. Dr Salojärvi uses human rights as a case study to demonstrate that the way in which we perceive them over time (i.e. their origins, their changing content throughout human history, the time-frame of our inquiry etc) creates a type of observer effect, as it inevitably changes the human rights narrative that we use.
Professor Timothy Waters then took the floor and argued that, in fulfilling their function, even international courts and tribunals sometimes use or construct certain historical narratives strategically. Professor Waters takes the example of the ICTY and argues that its function both as a criminal court tasked with punishing individual offenders and as an instrument of transitional justice, in a sense “necessitated” the re-construction, by the Tribunal itself, of former Yugoslavia as a good and peaceful place; a place which was destroyed by criminals, and which, through the trials, was meant to be restored and reclaim its place among the European family. Such a linear narrative of history is not necessarily implausible or untrue but, according to Professor Waters, it is strategic.

Panel 2: “The Role of Time in the Creation of Norms”, comprised of Dr Jan Martin Lemnitzer (University of Oxford), Rob Grace (Harvard University), and Tommaso Soave (PhD Candidate, Graduate Institute and WTO) and Shashank Kumar (WTO).
Dr Jan Martin Lemnitzer took us on a trip in history, at the time of the 1856 Paris Declaration. It is there, he argues, that we find the origins of international law as we know it today. The aim of the Paris Declaration was to ban privateering and to protect neutral trade in times of war. In order to achieve these goals, the Declaration pioneered international law in many respects; it was a “law-making treaty” – the first of its kind – allowing all States other than the original drafters to subsequently become parties, thus marking a truly universal turn for international law; it also paved the way forward for holding multilateral norm-setting conferences, and in the process led to the establishment of international lawyers as a distinct profession.
Rob Grace conceptually conceived the development of international normative frameworks as a gradual and incremental process of generating consensus over a long period of time. He used the development of refugee law over three eras (i.e. League of Nations era; period between the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol; post-1967 era) as a case study, to demonstrate how the law protecting refugees has developed incrementally as the result of a “tug-of-war” between evolving humanitarian needs and evolving political interests.
Finally, Tommaso Soave and Shashank Kumar examined time and temporality as dimensions of governance. On the one hand, there is the temporality of iteration and repetition (emphasising effective administration, short-term managerialism and preservation), and, on the other, there is a linear temporality (emphasising notions of progress, improvement, and the achievement of some kind of “master plan”). For Soave and Kumar, different levels of governance employ different temporalities or time-horizons. They thus conceive of domestic governance as employing a (mostly) iterative time-horizon, and international governance as employing a (mostly) linear one. The upshot is that, as the dividing lines between the international and the domestic are blurring, these temporalities – each claiming for itself the authority to regulate aspects of life – at times find themselves in a situation of strategic alliance and at times in a state of conflict.

Panel 3: “Time and the Operation of International Legal Norms”, comprised of Professor Robert Howse (NYU), Dr Panos Merkouris (University of Groningen), and Dr Matthias Vanhullebusch (Shanghai Jiao Tong University).
Professor Robert Howse analysed some of the complications arising out of having different temporalities simultaneous at play in dispute settlement treaties. He takes the example of the three-year time limitation for bringing claims under Article 1116(2) of the NAFTA and examines its relationship with the notion of a breach of an international obligation (especially with regard to continuous or composite breaches) under the general law on State responsibility. For Professor Howse, a time-limit prescription is aimed at stabilising legal relationships and avoiding opportunism, not at extinguishing responsibility for a breach of international law. Thus, time-limit prescriptions and the law of State responsibility need to work side-by-side and in unison, rather than in opposition to one another.
Dr Panos Merkouris then tackled the philosophical question pertaining to the ontological existence of international treaties in space-time and the effects that their ontology has on legal interpretation. Such effects, he argues, are most prominently expressed in the competition between the principles of contemporaneity and evolutive interpretation. According to Dr Merkouris, the only methodologically sound way of determining which of the two interpretative principles ought to guide a treaty’s interpretation is by unearthing the “time-will” of the parties, that is, the intention of the drafters with respect to the effect that time would have on the content of the treaty’s rules.
Lastly, Dr Matthias Vanhullebusch turned our attention to the Chinese conception of time in international law and international relations. Westerners and Easterners, he tells us, adopt two quite different attitudes in international relations. Westerners tend to think in polarised and irreconcilable binaries (e.g. sovereignty v community), conceived in conflicting idealist and realist terms; at each point in time one wins and the other loses. But for Easterners such oppositions are a natural occurrence. Thus, for them the question is not which position wins but how the two can be complemented and balanced in an optimal manner. This, Dr Vanhullebusch says, is the result of two different conceptions of time. Westerners tend to regard time as a linear concept (emphasising the passage from the past to the present and then to the future), whereas Easterners – influenced by Confucian philosophy – regard time as circular (emphasising a complementarity and dialogue between past, present and future). Perhaps also influenced by Confucius, Dr Vanhullebusch suggests that these two different perceptions of the world can find ways to interact and complement one another.

Panel 4: “International Law between Change and Stability”, comprised of Dr Gregory Messenger (University of Oxford), Professor Jaye Ellis (McGill University), and Dr Malcolm MacLaren (University of Zurich).
Dr Gregory Messenger took the floor first. He argued that the need we have of law to provide both certainty and the possibility of change has led us to a representation of time in international law that does not correspond to our common understanding of time as fluid and continuous. More specifically, in the processes of law-identification, interpretation and law-application, judges seek to identify law as frozen in static moments throughout time in order to make their judicial pronouncements (customary law being a case in point). This, Dr Messenger argues, misses the point of how law really develops continuously with the passage of time.
Professor Jaye Ellis advocated the adoption of what can be termed as an “ecosystem approach” to legal systems, and in particular, to international environmental law. For Professor Ellis, legal systems, like natural ecosystems, are better understood as non-linear complex adaptive systems seeking to be “resilient” (i.e. having the: ability to undergo change but to still be able to retain the same functional and structural controls; capability of self-organisation; capacity of learning and adaptation). Understanding international environmental law in this light, Professor Ellis argues, helps us to better address environmental challenges. She accordingly proposes re-focusing academic attention on five constitutive elements of resilience: aggregation (i.e. viewing international environmental law as part of a larger and complex legal system); information flows regarding the content of the rules of the system (in particular by bolstering environmental litigation); non-linearity (i.e. moving away from a simple cause-and-effect outlook and instead taking stock of the fact that regulation in a certain area of law may have unexpected consequences in another area); diversity (in particular by infusing environmental considerations to other areas of international law, such as trade, investment and human rights); and self-critical behaviour (referring to the possibility of a legal system to learn from past mistakes and adapt to changed circumstances).
Panel 4 ended with the contribution of Dr Malcolm MacLaren. Dr MacLaren focused on the contribution of time and societal change in the continuous development of international law. Using the ever-emerging role of non-State actors as his case study, Dr MacLaren argued that it is these factors, namely the passage of time and the societal change that the passage of time brings, that should guide international law’s reformist agenda, rather than our current paradigms.

Panel 5: “Continuity, Discontinuity, Recurrence”, comprised of Professor Patrick Dumberry (University of Ottawa), Dotse Tsikata (UC Davies and African Development Bank), Professor Philipp Kastner (University of Western Australia), and Dr Victor Kattan (National University of Singapore).
In his contribution, Professor Dumberry described the rise, fall, and recent re-emergence of the customary international law minimum standard of treatment (CIL/MST) of aliens in the field of investment protection. As Professor Dumberry points out, the early 20th century glory days of the CIL/MST had been long gone by the 1990s, following criticism regarding its unsettled and ambiguous content and the emergence of FET as an independent standard of treatment in many BITs. This dynamic changed suddenly when investment tribunals started giving broad, divergent and at times idiosyncratic interpretations to FET clauses. Thus, nowadays the treaty practice of many States shows a – somewhat paradoxical – return to the CIL/MST as a kind of “safe haven”. But if the contributions to this conference have taught us anything so far, one must wonder whether referring to the CIL/MST as a standard of treatment frozen in time will be enough to provide States with the clarity and stability they hope for.
Dotse Tsikata called for the creation of a new field of legal scholarship based on the revival of Wolfgang Friedmann’s concept of the International Public Corporation (IPC), as a distinct sub-category of international organisation. According to Tsikata, the concept of the IPC (itself defined as an international corporate body established for purposes of international governance but constituted as a commercial corporation), survives today in institutions such as, among others, the BIS, the World Bank, the IMF, regional development banks, and the ECB. Tsikata’s proposed research agenda involves drawing insights from the structure and inner workings of modern IPCs, to be used in the current debates regarding the governance and accountability of international organisations.
In keeping with the theme of time as linear versus time as circular, Professor Philipp Kastner’s contribution put the proposition forward that international law appears to be increasingly mindful of the dimension of time. Professor Kastner sees this trend in peace agreements negotiated after the end of internal armed conflicts (in particular, in their transitional justice provisions). International law, he argues, now obliges post-conflict societies to engage with the past in fairly specific ways so as to ensure a better future, rather than just mandating to forget or ignore the past (e.g. through a restoration of the status quo ante or by allowing the winner to dictate the new rules of cooperation). As such, international law in this field tends to view time as circular (where past, present, and future are inherently connected), rather than linear (where the past is displaced by the present and this is in turn displaced by the future).
Finally, Dr Victor Kattan continued with the theme of linearity versus circularity by turning our attention to the fact that the formation, the content, and the legal implications of legal norms are inevitably influenced by political ideologies. Dr Kattan examines the principle of self-determination throughout history and concludes that, depending on their ideology, different people mean different things when they use this principle in legal discourse. He identifies, on the one hand, the Wilsonian idea of self-determination (expressed in legal terms in the trusteeship model of the League of Nations and the UN), and on the other, the Leninist conception (reflected in the “Declaration of the Granting of Independence to Colonial Countries and Peoples” in UNGA Resolution 1514). Though the latter understanding of self-determination has replaced the former as customary law, this, Dr Kattan argues, did not happen from one moment to the next but rather as a result of a continuous and gradual process of ideological contestation. Thus, to merely say that self-determination is a principle of customary law is not particularly helpful in cases where the historical element is determinative, as evinced in the recent Mauritius v UK arbitration relating to the establishment of a MPA in the Chagos archipelago (pointing at the fundamentally different conceptions of self-determination advocated by counsel for Mauritius and counsel for the UK).

Panel 6: “Dealing with the Past: Legacy, Retroactivity and Beyond”, comprised of Professor Carsten Stahn (Leiden University), Lorenzo Palestini (PhD Candidate, Graduate Institute), and Professor Asier Garrido-Muñoz (ICJ and University of Salamanca).
Professor Carsten Stahn’s study of international criminal courts and tribunals (ICTs) sought to unpack a concept that is of increasing importance in their work; legacy. Professor Stahn’s contribution first denies the existence of a single conception of legacy. There are, in fact, no less than five different conceptions, tied to the dual – legal and social – function of ICTs (i.e. juridified legacy; systemic/institutional legacy; performative legacy; reproductive legacy; receptive legacy). Following that, Professor Stahn criticises our current understanding that views legacy as a bilateral, seemingly inconspicuous, technical or apolitical process. To the contrary, legacy is a process of social construction that happens gradually and by different actors. It is grounded in social interaction, it is framed through competing narratives and, as such, it evolves over time. Accordingly, criminal ICTs, through their activity, can certainly contribute to the process of legacy formation, but should not try to control or monopolise legacy creation, as they currently seem to be doing.
Ending this panel were the two contributions of Lorenzo Palestini and Professor Asier Garrido-Muñoz. Both participants tackled issues arising out of the former-Yugoslavia cases before the ICJ, and in particular of the 2015 judgment on the merits on Croatia v Serbia. Lorenzo Palestini traced the history of these cases. He argues that, throughout these proceedings, the Court has used the dimension of time strategically. It has done so, first, by applying arbitrarily the Mavrommatis principle to either assume or decline jurisdiction, so that the answer to the question of the critical date with respect to a finding on jurisdiction is still very much unclear. Second, in order to avoid thorny legal questions in the 1996 judgment on the case regarding the Application of the Convention on the Prevention and Punishment of the Crime of the Crime of Genocide, the Court created a temporal vacuum which it sought to fill with the (erroneous) retroactive application of the Genocide Convention, a legal determination which it reversed in the 2015 Croatia v Serbia judgment. Third, in its 2015 judgment, the Court found that it had jurisdiction to examine Serbia’s liability without however first examining whether there could be a succession of responsibility to Serbia. For Palestini, this allowed the Court to both bypass this controversial legal question and avoid giving the impression of impunity (for Palestini, the Court already knew that it probably could not condemn Serbia of committing the crime of genocide). The contribution of Professor Asier Garrido-Muñoz focused on the temporal dimension of the succession of federal States with respect to treaties. Examining the 2015 ICJ judgment, Professor Garrido-Muñoz first noticed how the Court dissociated State succession from its principal consequence (i.e. the assumption of international responsibility by the successor, for instance by replacing the predecessor as party to a treaty). He then went on to examine the issue under the law of treaties and the law of State responsibility. Finding that the law on State succession does not take adequate account of the complexities posed by the dissolution of federal States with respect to treaties, Professor Garrido-Muñoz proposes the introduction by analogy (from the law on the responsibility of international organisations) of the criterion of “control of the federal government by a sub-State entity” to bridge the gap.

Thus concluded an intense two days replete with thought-provoking scholarship and stimulating debates among the participants. All in all, this was a very well organised conference on an important topic us lawyers sometimes tend to overlook. Moreover, despite the theoretical outlook and the high level of abstraction of many of the contributions, this conference on International Law and Time left us with some surprisingly practical insights about the function of law, the influence of legal officials and the role of the legal profession in international life.

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