Abstract
Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of international law, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d’être, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this chapter acknowledges the limits and weakness of legal positivism in making sense of the inter- and supranational legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning international law, and its consequence for interpretivism in the international environment, so different from State political communities and their “integrity”. Finally, some recent cases before international courts shall be considered, that expose difficulties stemming from traditional legal positivist strictures, and explain how judicial reasoning actually profits from asking further questions of principles. All the more so, if the issues at stake happen to be covered by two or more diverging legal regimes, that would, per se, lead to opposite outcomes.
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Notes
- 1.
Raimondo (2008).
- 2.
Ibid., p. 42.
- 3.
Lauterpacht (1975) [1958].
- 4.
Dworkin (2013), p. 1 ff.
- 5.
Koskenniemi, Introduction, in Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, International Law Commission, 58th session, 2006, UN Doc. A/61/10, para. 251. On the proliferation of regimes and courts, for example, Shany (2003).
- 6.
For J. Stone: “Non liquet comes into argument rather when applicable rules of appropriate content and precision are simply not available for adjusting the particular clash of interests”. See Stone (1959), p. 124.
- 7.
Lauterpacht (1975) [1958], p. 216.
- 8.
Ibid., p. 196.
- 9.
Cheng (2006) [1953], p. 24.
- 10.
Hearn (1990), p. 225.
- 11.
In different words, the door opening to (rule’s) validity criteria placed outside the legal system. The duty to decide holds despite absent or conflicting rules; its feasibility is granted by recourse to principles, whose membership in the legal system—if any—would hardly prevent any reference to law of nature or of reason.
- 12.
Stone (1959), p. 133.
- 13.
As a consequence, a “law-creating choice” shall be in place, although it shall be disguised by way of “logical deduction from the principle finally chosen” (Ibid.).
- 14.
Cheng (2006) [1953].
- 15.
- 16.
Some requisites of personal integrity, impartiality, honesty and the like are held for UN officials, and codes of conduct for those with special mandates as Rapporteurs. Cf. Klabbers (2013), p. 433 ff. See also Human Rights Council, Resolution 5/2, Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council, 9th session, Article 3(e), 18 June 2007.
- 17.
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), 1155 UNTS 331, Article 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.
- 18.
Those principles range from higher-lower levels of generality: think of the principle of non discrimination in its specific World Trade Organization (WTO) appearance as the “most favoured nation” principle, and its underlying rationale of enhancing unrestricted free trade. For example, it is maintained that: “In the current WTO, the traditional trade law principles of most favoured nation and national treatment operate against state failure in the form of protectionism. These principles are constitutive of the system of multilayered governance and thus may be considered as amounting to constitutional principles of the trading system. They constrain the WTO members and are increasingly viewed as two facets of a constitutional principle of non-discrimination ultimately benefiting the ordinary citizens (such as importers, exporters, producers, consumers and taxpayers)” (Armingeon et al. (2011), p. 76).
- 19.
Peters (2009), p. 348.
- 20.
Peters (2006).
- 21.
Among his many works especially Dworkin (1986).
- 22.
Waldron (2013a), pp. 209–223.
- 23.
Cassese (2005), p. 217.
- 24.
- 25.
Slaughter (2005), pp. 619–631.
- 26.
Dworkin (1986), pp. 176–275.
- 27.
Dworkin (2013), p. 1 ff.
- 28.
Hart (1997), Chap. X.
- 29.
Dworkin (2013), p. 9.
- 30.
Ibid., p. 10 and with reference to Chap. 14 of Dworkin (2011).
- 31.
For example, see Martti Koskenniemi on the vicious circle between facts and norms i.e. between States’ consent and its being norm-generative (normative) upon States themselves: Koskenniemi (1990), pp. 4–32. And upon the problematic reflexivity of pacta sunt servanda, Fitzmaurice (1958), pp. 153–176.
- 32.
Dworkin (2013), p. 3.
- 33.
This argument is not only typical to Dworkin’s criticism of legal positivism. It is an objection that can be raised against any conventionalist approach. As Cotterrell noted, accepting as law simply what “people identify and treat through their social practices as ‘law’”, keeps a “definitional concern with what the concept of law should cover, yet removing from the concept as defined all analytical power” (Cotterrell (2008), p. 8). The reference is to Tamanaha (2001), p. 166.
- 34.
Dworkin (2013), p. 17.
- 35.
Ibid.
- 36.
Ibid.: “Any State … improves its legitimacy when it promotes an effective international order that would prevent its own possible future degradation into tyranny” (p. 17); it does the same also when it can protect its people, on whom it has monopoly of force, from invasions of other peoples; moreover, a State fails in a further way if it discourages cooperation to prevent economic, commercial, medical or environmental disaster (Ibid., p. 18). As to cooperation in international law, see for example Friedmann (1964).
- 37.
Dworkin (2013), p. 19. As Dworkin writes: “If some humane set of principles limiting the justified occasions of war and means of waging war gains wide acceptance, for instance, then the officials of other pertinent nations have a duty to embrace and follow that set of principles” (Ibid.).
- 38.
“Equal concern and respect” had a pivotal role in Dworkin’s (1978) philosophy since his Taking Rights Seriously (with a new appendix, a response to critics), Introduction, p. XII: “This most fundamental of rights is a distinct conception of the right to equality, that I call the right to equal concern and respect”.
- 39.
Dworkin (2013), p. 13.
- 40.
Ibid., p. 15.
- 41.
Ibid., p. 23. Dworkin mentions Franck (1999), pp. 857–860.
- 42.
Dworkin (2013), p. 22.
- 43.
Dworkin (1986), p. 52.
- 44.
Dworkin (2006a), p. 140.
- 45.
“[H]art was right to think that the combination of first-order standards imposing duties and second-order standards regulating the creation and identification of those first-order rules is a central feature of paradigmatic legal systems. His emphasis on this structure was not itself remarkably original. …Hart’s distinctive contribution was his claim that in paradigmatic legal systems the most fundamental secondary rule or set of rules—the complex standard for identifying which other secondary and primary rules count as law—has that force only through convention”. Dworkin (2006b), p. 100.
- 46.
Dworkin (1986), p. 4.
- 47.
It goes without saying here that Dworkin can hardly be isolated or sidelined to this regard, since as he knows, the post Hartian decades have shown the salience of this second view, in diverse ways upheld by positivist writings, from Coleman to Waldron, MacCormick, Postema and Schauer (see Dworkin (2006a, b), p. 104). And it is rather revealing even the “nuanced difference” as to the precise role of morality vis-à-vis law, that Waldron has recently noticed between the late Dworkin in Justice for Hedgehogs and the exclusive positivism of Joseph Raz in his Incorporation by Law; see Raz (2004), p. 6. Cf. Waldron (2013b), p. 16 ff.
- 48.
Shapiro (2007), p. 38.
- 49.
Ironically one can say that the autonomy of the theory vis-à-vis empirical facts is here to be invoked not in order for them to be disregarded (recall Hegel at the news of a new planet’s discovery: “Desto schlimmer für die Tatsachen”), but for them to be taken into account. It seems that Hegel said so when informed that a seventh planet had been discovered (by Herschel in 1781), after having based his dissertation, De Orbitis Planetarum, on the assumption that there could be no more than six.
- 50.
Fears are raised that further law would only express unilateral need of the most powerful to create their own institutions, or provide leeway through multiplication of routes of non-compliance, allow for sidestepping preexisting commitments, trigger the “court choice” as a forum shopping, and so forth. For example, against constitutionalization process as an even process (or one that would freeze the existing power relations, regardless of their actual legitimacy as it would be the case of WTO multilateral trading order’s absence of democratic contestability and inclusiveness), see Krisch (2005) p. 377; Howse and Nicolaidis (2003), p. 73. And for the geopolitical related analysis, Armingeo and Milewicz (2008), pp. 179–196.
- 51.
I recall Martti Koskenniemi, on this case—among the most debated upon some years ago—to which three different regimes were applicable: “Let me quote the Tribunal [Arbitral Tribunal at the UNCLOS]: ‘even if the OSPAR Convention, the European Community Treaty and the Euratom treaty contain rights or obligations similar to or identical with the rights set out in [the UNCLOS], the rights and obligations under these agreements have a separate existence from those under [the UNCLOS]’. The tribunal then held that the application of even the same rules by different institutions might be different owing to the ‘differences in the respective context, object and purposed, subsequent practice of parties and travaux préparatoires’. It is not only that the boxes have different rules. Even if they had the same rules, they would be applied differently because each box has a different objective and a different ethos, a different structural bias”. See Koskenniemi (2006), pp. 4–5. However, in the same line, there had been equally famous cases like Swordfish at WTO (Chile—Measures Affecting the Transit and Importation of Swordfish, Doc. WT/DS193); at the International Tribunal for the Law of the Sea, Chile v. European Community (15 March 2001) (suspended). See Orellana (2002), p. 55. See also Soft Drinks (Mexico—Tax Measures on Soft Drinks and Other Beverages, Doc. WT/DS308/R).
- 52.
Joined cases C-402/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation [2008] ECR I-6351.
- 53.
Case T-315/01 Kadi [2005] ECR II-3649.
- 54.
Medellín v. Texas, 552 US 491 (2008).
- 55.
De Búrca (2010), pp. 1–49.
- 56.
De Búrca (2011), p. 649 ff.
- 57.
The Kadi decision however can also be stretched to represent a pattern of conditional agreement, based on mutual respect under conditions, which mirrors the equal protection requirement, or the Italian doctrine of “counter-limits”, and similarly the Solange reasoning from the German Constitutional Court. See Palombella (2009), pp. 442–467.
- 58.
Al-Jedda v. The United Kingdom (App. no. 27021/08), ECtHR, judgment of 7 July 2011.
- 59.
See para. 35 (Lord Bingham) of the House of Lords decision, as pasted in Al-Jedda v. The United Kingdom cit., para. 11: “Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in Article 103 [UN] to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion”. The same author, Tom Bingham, though, has written the important book The Rule of Law (2011). Clearly, his idea of the rule of law is different from mine: cf. G. Palombella (2014).
- 60.
That kind of appeal to the rule of law in the international legal order, resonates in the 2005 decision of the Court of First Instance in Kadi .
- 61.
ECtHR, Al-Jedda v. The United Kingdom, cit., para. 102 (and the premised, para. 44).
- 62.
Ibid.
- 63.
Ibid.
- 64.
Cf. Palombella (2014).
- 65.
Al-Dulimi and Montana Management Inc. v. Switzerland (App. no. 5809/08), ECtHR, judgment of 26 November 2013.
- 66.
The Court had already decided the Nada case where discretion was deemed existent. Nada v. Switzerland (App. no. 10593/08), ECtHR [GC], judgment of 12 September 2012.
- 67.
The Swiss Federal Tribunal (BGE 2A.783/784/785/2006; all of 23 January 2008) had maintained that it was not entitled to revise the legality of Security Council resolutions except in the event (that was not) of violation of a jus cogens rule (as in the reasoning of the Court of First Instance of the European Union in Kadi). After allowing Al-Dulimi more time for a (unsuccessful) further appeal to that Committee, the Tribunal concluded that Switzerland’s behavior was legitimate, and did not violate either domestic constitutional norms or Articles 6 and 13 of the ECHR.
- 68.
Recall the opening of Dworkin’s Law’s Empire (1986) (being the role of “participant” a premise to interpretive endeavour).
- 69.
So writes Anne Peters. See Peters (2013). See the dissenting opinion of Judge Sajó: the complaint should have been dismissed, as “irrecevable” (inadmissible) ratione personae, because the State is not acting of its own but clearly under the order of the Security Council, which gave it no leeway. But he did join the majority in deciding that a violation of human rights occurred due to the insufficient guarantees provided by the UN sanctions system. See Al-Dulimi and Montana Management Inc. v. Switzerland cit., in coda.
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Palombella, G. (2015). Principles and Disagreements in International Law (with a View from Dworkin’s Legal Theory). In: Pineschi, L. (eds) General Principles of Law - The Role of the Judiciary. Ius Gentium: Comparative Perspectives on Law and Justice, vol 46. Springer, Cham. https://doi.org/10.1007/978-3-319-19180-5_1
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